lawtalk 840

LawTalk28 April 2014 · 840

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The onus is on you to closely monitor and moderate the third-party comments to ensure they do not contain statements that could not legally be made in any other type of advertising.

Contents.Contents.Contents.Contents.Contents.

Elliot Sim

Page 04

Social media marketing

LawTalk takes a look at lawyer use

of social media,including responsiblity for user-generated content on law � rms’ and sole practitioners’ social media pages.

Our Profession, Our People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 08Practising Well . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Asking for favours. How to get what you want.

Effective practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18International law awards are a growth industry. A quick guide to some where New Zealand � rms and lawyers have been among the winners.

The Bookshelf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Law reform report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22From the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Nakedbus had a habit of annoying Intercity by using the word “intercity” in its advertisements and on its website, as its metatags and keywords for Google searching and advertising.

Anti Money Laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24A recent debate conducted by the Law Society’s Wellington branch revealed that lawyers’ ethical rules may be more e� ective than specialist legislation which tries to stop criminals using law � rm trust accounts and other methods to launder at least $1.5 billion of organised crime proceeds washing through the New Zealand economy each year.

Courtroom practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Despite some obstacles, a class action regime is emerging in New Zealand. This is an important development for individuals’ access to justice and their ability to e� ect social change.

Land on competition law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28The new Lender Responsibility Principles will be very important to the application of the Credit Contracts and Consumer Finance Act 2003.

NZLS CLE upcoming programmes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Financial markets law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Lawyers Complaints Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Classified Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Regulars

Feature

– Brookfi elds Lawyers partner John Ferner

01LawTalk 840 · 28 April 2014 ·

From the Law SocietyFrom the Law SocietyFrom the Law SocietyFrom the Law SocietyFrom the Law Society

Chris Moore

A new intervention rule was adopted by

the New Zealand Law Society Council at its meet-ing on 11 April. This brings to fruition six years of work by the Law Society, and its � nalisation ful� ls

one of my major objectives for 2014 as President of the Law Society.

The 2008 Rules of Conduct and Client Care, introduced following the passage of the Lawyers and Conveyanc-ers Act 2006, required that the Law Society review the intervention rule.

Under the rule as it stood then, a barrister sole had to accept instructions only from a solicitor and was not able to accept instructions directly from a lay client. There were exceptions to the rule but they were relatively narrow and limited to special instances and not ordinary instructions.

The Conduct and Client Care Rules required the Law Society to start the review within 18 months of the rules coming into force and to proceed with the review “with reasonable expedition having regard to all the circumstances”.

We have done just that. In fact, many people in the Law Society have been working hard on this matter over the last six years. As well as the work undertaken by the last three Law Society Presidents, the Board, the Council and Law Society sta� , the Society undertook two major consultations with the profession in 2010 and 2011.

I would like to thank all those members of the profession who actively engaged with us during this consultation.

We have also consulted closely with a number of groups of people. These have included the New Zealand Bar Association and the Ministry of Justice.

It has been anything but an easy process to come up with a new intervention rule within an environment where there has been such a divergence of views within the profession. The views have ranged from complete abolition of the intervention rule to leaving it in place as it is still currently provided under the 2008 Rules of Conduct and Client Care.

So reaching a solution that would incorporate the views of as many interested people as possible has taken many thousands of hours of work, much of it voluntary. The Law Society is very grateful for this contribution to the profession and, on the Society’s behalf, I would like to thank everyone who has been involved in the development of the new intervention rule.

In marked contrast to these many hours of work, the 11 April Council meeting took just 24 minutes from the time the agenda item came up to the time the new rule was adopted.

In a nutshell, the Council has resolved to have an intervention rule, but with a series of exceptions.

The proposed new rules, which will replace Rules 3.4 to 3.10 and 14.4 to 14.13 of the Lawyers and Conveyancers Acts (Lawyers: Conduct and Client Care) Rules 2008 are quite long. The Law Society is planning to provide training for the profession on the new rules and we will advise everyone about this in the near future.

The � rst step, however, is that the Law Society seeks the approval of the new rules from the Minister of Justice, Judith Collins.

Chris Moore

New Zealand Law Society President

02 · LawTalk 840 · 28 April 2014

LawTalkMore than 12,000 copies of LawTalk

are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certi� cate. Although the number of lawyers with practising certi� cates varies, it is typi-cally around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.

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The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.

News PointsNews PointsNews PointsNews PointsNews Points

Encouraging move for gender diversityFemale promotions at two United

Kingdom law � rms – top-20 � rm DAC Beach-croft and magic circle � rm Linklaters – have increased signi� cantly since last year, reports The Law Society Gazette, Journal of the Law Society of England and Wales (14 April). The Gazette described this as “an encouraging move for gender diversity at city � rms”. More

than half (56%) of DAC Beachcroft’s 16 promo-tions went to women this year, compared with just one out of � ve in 2013. Of the 21 promotions at Linklaters, nine went to women (43%), in contrast to just three out of 24 in 2013 (13%). The elections at Linklaters will bring the total number of female partners to 18% of the � rm’s 457 partners, an increase from 16% in May 2013.

Sir Owen Woodhouse diesDistinguished New Zealand jurist

Sir Owen Woodhouse died on 15 April. He was aged 97.

Renowned as the architect of New Zealand’s world-leading no fault accident compensation system, Sir Owen was also

known for his reform-ing and progressive approach to the devel-opment of New Zealand jurisprudence.

An obituary for Sir Owen is on the my.lawsociety website,

http://my.lawsociety.org.nz/in-practice/people/obituaries/obituaries-list/rt-hon-sir-owen-woodhouse-onz,-kbe,-dsc,-1916-2015.

Restorative justice reduces crimeRestorative justice had a “stat-

istically signi� cant” impact on the number of o� enders who reo� ended and, for those who did reo� end, the frequency of that o� ending, a new study has shown.

New research, released by the Ministry of Justice on 3 April, shows that, on average,

o� enders who participated in a Police or court-referred restorative justice conference:• committed 23% fewer offences than

comparable o� enders over the following 12-month period; and

• had a 12% lower rate of reo� ending than comparable o� enders over the following 12-month period.The full report is at www.justice.govt.

nz/publications/global-publications/r/reo� ending-analysis-for-rj-cases-2008-11/.

High Court remains busyThe High Court was busy in 2013, the

Chief High Court Judge, Justice Helen Winkel-mann, says in a report on the High Court for the last calendar year. Jury trials new business for the year ended 31 December is down on the previous year but criminal disposals exceeded new business. In the civil jurisdiction, a high

proportion of cases (compared to other common law jurisdictions) are heard by trial and these cases are being heard more quickly. Judgment delivery remains timely. The full report is at www.courtsofnz.govt.nz/front-page/from/judicial-reports/2013-High-Court-Annual-Review-for-profession.pdf.

03LawTalk 840 · 28 April 2014 ·

New Zealand law firms are

increasingly using social media web-sites to communicate with sta� and clients. It is common for businesses to use Facebook, Twitter, YouTube and

LinkedIn to advertise their wares, but many in the legal profession are choosing the latter as a way to promote their o� erings.

Law Society research conducted via LawPoints showed that out of the 240 lawyers who indicated how they use social media, 36.02% used LinkedIn for work only, with 19.92% using it for work and personal use. comScore Data Mine – an online statistical generator – says 2.8 million people accessed a social media site in New Zealand during November 2013, with this category reaching 94.6% of the total Kiwi internet audience.

Facebook was the clear leader with 1.95 million unique visitors, with LinkedIn coming in second place with an audience of 798,000 unique visitors.

In the past 12 months, LinkedIn displayed strong growth (53%) with its population growing from 520,000 in December 2012 to 798,000 in

November 2013. Blogger (a free blogging platform run by Google) ranked in third position with 559,000 unique visitors that month.

LinkedIn attracted a large share of the older population with two thirds of their users over the age of 35 (68.6%), while more than half (55.3%) of Tumblr’s users are under 35.

Facebook and Blogger shared a similar audience composition, where the number of visitors aged 15-24 accounted for the largest segments of the Kiwi audience, whereas people aged 55-plus made up the biggest proportion of LinkedIn users in November 2013.

On November 26 last year, LinkedIn announced it had gained 1 million members in New Zealand (259 million members globally).

These � ndings seem to coincide well with statistics gathered in LawTalk issue 836, revealing the average age of a lawyer at 40.2 years (based on the knowledge of ages at just over two-thirds of the profession).

According to the MYOB Business Monitor March 2013 – a survey of 1000-plus small and

Soc ialMed iamarketing

WHO’S RESPONSIBLE FOR MONITORINGUSER-GENERATED CONTENT ?

BY ELLIOT SIM

04 · LawTalk 840 · 28 April 2014

medium sized enterprises (SMEs) throughout the country – 23% of business, professional and property SME operators use social networking sites for business purposes, 7% have only a social media site (for example a Facebook page) as an online presence for their business and 16% have both a business website and a social media page.

Kirsten Hodgson of Kaleidoscope Marketing says she has seen a marked increase in the legal profession turning to social media as part of their marketing strategy.

“At an individual level, yes there has been an increase. Although on the whole I still don’t think lawyers are using these tools as e� ectively as they could.”

She says this could be because some are still unsure of how to use or monitor them and how they � t within the lawyer’s or � rm’s existing business development initiatives.

She says using social medium platforms such as LinkedIn requires a common sense approach; being aware it’s public informa-tion and explicit as to who should view a post and why.

Brook� elds Lawyers partner

John Ferner, who specialises in corporate/commercial law says any third-party or user-generated comments (UGC) presented on your social media pages that refer to your business may be your

responsibility under the law, even though you have not directly created them.

“If you are incorporating third-party comments in the social media channels you use for business marketing you need to remember that those comments can become part of your advertising and your responsibility in law,” he says.

“The onus is on you to closely monitor and moderate the third-party comments to ensure they do not contain statements that could not legally be made in any other type of advertising.

“Your own comments are obviously covered by the Fair Trading Act [1986] and defamation law.”

There have not been any court decisions in New Zealand

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15–2415%

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Tumblr Tw itter Facebook Blogger L inked in Age

05LawTalk 840 · 28 April 2014 ·

o n t h e w h o l e

I s t i l l d o n ’ tt h i n k l a w y e r s

a r e u s i n g t h e s e t o o l s

a s e f f e c t i v e lya s t h e y c o u l d

— K i r s t e n H o d g s o n , K a l e i d o s c o p e M a r k e t i n g

regarding this. How-ever, the Australian Competit ion and Consumer Commis-sion strictly viewed comments on a busi-ness’ social media website as marketing communications.

In a case in Australia, the Australian Federal Court held that the com-pany in question accepted responsibility for fan posts and testimonials on its social media pages when it knew about them and decided not to remove them.

“People need to remember that when they put up a Facebook page or set up a Twitter account in the name of their commercial organisation or company, everything on that page is a statement by them. At least to the extent that they have not taken it down after they’ve had time to do so.

“It’s their responsibility to manage that page and take down the stu� that’s inappropriate.”

This can be the obvious negative com-ments but also overly positive ones which are unsubstantiated.

Mr Ferner says it’s the overall impression of the message that really matters, as a successful legal career is based on reputation.

“If you do this [market on social media] and you have a page that’s designed to pick up testimonials, have a look at regular intervals and make sure what’s being said is appropriate. If not, take it down.”

Advertising Standards Authority chief

executive Hilary Souter says if a company or � rm is caught out on a social media website, it’s about being proactive and removing the content quickly.

For the purposes of the ASA Codes of Practice, the word “advertisement” includes any form of advertising and includes advertising which promotes the interest of any person, product or service, imparts information, educates, or advocates an idea, belief, political viewpoint or opportunity.

Therefore, Ms Souter says, a � rm should � rst

think about what the purpose of the page is and whether it falls with the ASA’s de� nition of advertising – whether it’s informational/promotional.

She says the regulating of social media plat-forms is on a case-by-case basis following a complaint as “there’re no hard-and-fast rules at this stage” – but that user-generated information could be included.

“What’s interesting about social media is that it’s not been a big generator of complaints for us ... Because you can interact within the medium itself you tend to get immediate feedback from people. You have to be proactive in managing it,” Ms Souter says.

“It’s important to have a communications strategy and within that, what your social media strategy is and why you’re doing it. Having it for the sake of it is not necessarily going to do anything for you.”

Ms Souter says legal comment or articles placed on LinkedIn “hasn’t been tested yet” but said hacking or trolling is a very real threat.

“For us, in the self-regulatory environment, it’s all about the proactive steps taken. It’s almost impossible to avoid that sort of thing happening if people are intent on doing it, but the issue for us is what steps were then taken as soon as you were made aware of it.”

06 · LawTalk 840 · 28 April 2014

Delicious

Work use only

Personal use only

Both work andpersonal use

Digg Facebook Flickr LinkedIn Reddit Twitter YouTube Contribute to blog

Google+

27%0.9%11%—— 20% 0.4% 2.6% 14% 1.3%8.4%3.1%54%—— 4.7% 4.4% 11% 52% 4.4%3.0%—0.4%—— 36% — — 0.4% 2.2%

How do you use (or not use) the following social media?

Asked in LawPoints 216240 responses

It is possible that user-generated content

(UGC) could fall within the jurisdiction of the ASA and the Codes of Practice. As with a number of other environments, where advertising and other content exist side by side, it would be considered on a case-by-case basis following a complaint. Context would be a key matter for consideration.

In establishing whether or not the UGC should be regarded as advertising, the preliminary areas of enquiry to be considered are:• Did the advertiser originally solicit the submis-

sion of the UGC from individuals and then adopt it and incorporate it within their own advertising?

• Did an individual provide the advertiser, on an unsolicited basis, with material that the advertiser subsequently adopted and incor-porated within their own advertising?

• Did the advertiser solicit UGC (for example via an invitation to enter a competition) that resulted in content being posted on the site?

• If the answer to any of these questions is yes and if the content of the material and the form it is used constitute an advertisement, then the UGC will be regarded as advertising.

If using paid-for Twitter endorsements – the hashtag #ad is required. Advertisers should be

careful about re-tweeting customer tweets, as they could be liable for that content if misleading.

R e q u i r e m e n t f o rA d v e r t i s e r c o n t r o lSocial media platforms allow individuals and groups to create environments that may refer to or comment on advertiser brands. Unless the advertiser has a reasonable degree of control over the social media platform in use and is promoting a brand or service to the public, it is outside the jurisdiction of the ASA.

E x a m p l e s o u t s i d e A S A j u r i s d i c t i o n i n c l u d e• an individual posting a Brand’s TVC on YouTube

with additional footage / comments;• an individual posting footage on YouTube

using a brand or product but with no company involvement;

• a tweet from a brand re-tweeted with added o� ensive content;

• user-generated comments on brand social media platforms (moderated for harmful and o� ensive language and comments); and

• user-generated comments to media platforms for use in editorial content.

U s e r - g e n e r at e d c o n t e n t w i t h i n A S A j u r i s d i c t i o n

07LawTalk 840 · 28 April 2014 ·

Our P

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Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. Submissions may be sent to [email protected]. If possible, please include colour photographs of any persons mentioned.

Image � les should ideally be print resolution of 300dpi, and must be a minimum of 500 pixels wide for headshots, 2000 pixels wide for group shots. You can � nd the dimensions of an image in Windows by right clicking on an image � le, going to ‘Properties’, and clicking on ‘Details’, or on a Mac by right clicking on the image � le in the Finder and clicking ‘Get Info’. JPEG or TIFF formats are acceptable, BMP or GIF are unacceptable. If digital � les are unavailable, hardcopy photographic prints of minimum 10cm x 15cm may be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145. We will endeavour to return hardcopy photographs, provided a return address is included.

P E O P L E I N T H E L AW

Chris Moore has been re-elected President of the New Zealand Law Society. He was elected unopposed at the Law Society Council meeting on 11 April. Mr Moore became the Society’s 29th President in April last year, when he succeeded Jonathan Temm. Since April 2013 Mr Moore has been a partner with specialist projects � rm Greenwood Roche Chisnall. This is the third � rm he has been a partner of, having moved from Meredith Connell. Before that he was a partner of Russell McVeagh. Mr Moore was chair of the Property Law Section from 2003 until 2013, President of the Law Society’s Auckland branch from 2009 until March 2013, and Vice-President (Auckland) from 2012 until he became the Society’s President. Mr Moore has more than 35 years’ legal experience, spanning a range of industry sectors, including commercial property, resource management, local government and public law. He regularly acts for overseas and institutional investors acquiring property interests in New Zealand and on the ongoing management and administration of those investments.

Mark Wilton is the new Wellington Vice-President of the New Zealand Law Society. Mr Wilton, the Police Prosecution Service’s Principal Prosecutor, has just served as Wellington branch President for the last two years. Wairarapa born and bred, Mr Wilton went from Rathkeale College to Canterbury University, where he graduated with a BA LLB. Music was his BA major. Admited in 1993, he worked as a paralegal at Stephenson Harwood in London, and was admitted in England and Wales in 1995. On his return to New Zealand, he worked as a litigator in Christchurch before returning to the Wairarapa and working for Woller-man Cooke & McClure (now WCM Legal) for about � ve years. In 2001, he moved to Wellington, joining Tripe Matthews & Feist as a criminal and civil litigator. Mr Wilton’s move to the Police Prosecution Service came in late 2003, when he became the Taranaki rural prosecutor, based in Hawera. He then moved to Wellington. Alongside law, opera is a passion for Mr Wilton. He is married to Annabel, who has practised family law, and they have two sons, Henry and Oscar.

Sarah-Jane Weir has been appointed to the Copyright Tribunal for a term of three years. Ms Weir will join Professor Susy Frankel (chairperson), Paul Sumpter, Peter Dengate-Thrush, Jane Glover and Sarah Bacon as the current tribunal members. Professor Frankel has also been reappointed chair and Mr Sumpter as a member for another term. Ms Weir has a Masters in Intellectual Property Law from Melbourne University. Previously a partner at Anderson Lloyd and now a consultant, she is also a director of

Nelmac Ltd, a Nelson City Council controlled organisation, and Network Tasman Ltd, an electricity lines company, and is chairperson of Fresh FM, a community access radio station.

Auckland barrister David Plunkett has been appointed a member of the Accident Compensation Appeal Authority for a three-year term. The authority hears appeals against Accident Compensation Corporation decisions and reviews decisions that were

Continued on page 10 ...

08 · LawTalk 840 · 28 April 2014

The results of a tragic

accident – which has left a young woman without her partner and her daughters without a father – have been eased a little, thanks to pro bono legal work.

Gregory Woledge died following a car crash on the Maungatapu bridge, which crosses Tauranga Harbour, at about 6pm on 12 August 2013.

The vehicle Iain Stewart Crisp was driving veered across the centre line and collided head on with Mr Woledge’s van. The van became airborne, crashed through the bridge railings and plunged into the harbour.

Mr Woledge was trapped inside the submerged van and died despite e� orts to save him. Ashley Donkersley, who was a passenger in the van, managed to force open the passenger door and escape the van. Constable Dean O’Conner then leapt o� the bridge to save Mr Donkersley.

After crashing into Mr Woledge’s car, Mr Crisp’s vehicle spun 180 degrees and ended up in a head-on collision with another vehicle. Mr Crisp was trapped in his car and had to be cut out by emergency services and taken to Tauranga Hospital. A blood sample taken at the hospital at 8.34pm revealed that within the previous three hours he had consumed the equivalent of one cannabis cigarette.

Mr Crisp has pleaded guilty to careless use of a motor vehicle causing death and careless use of a motor vehicle causing injury, as well as other charges, including possessing cannabis for supply.

When the accident happened, Mr Woledge’s partner had a daughter aged 2 years 11 months and she was six months pregnant. She has since given birth to a daughter.

Mr Crisp has o� ered $29,000 reparation to assist the two young girls, who are now without a father.

At � rst the mother did not want to accept the reparation, because she viewed it as “blood money”. However Tauranga lawyer David Pawson, who is a Police prosecutor, discussed it further with her.

He suggested to her that she could accept it, not for herself, but for the bene� t of her two daughters. Mr Pawson then arranged for Holland Beckett partner Bill Holland to set up a trust, which he agreed to do pro bono.

“I am very glad that Bill Holland has

Life made easier thanks to pro bono work

Two of the vehicles involved in an accident that left two young girls without a father.

agreed to work pro bono to set up the trust for these two young girls,” Mr Pawson says.

“I am really impressed and I am really grateful that he has stepped up to help in this very sad case.

“Despite the public perception of lawyers, we have got a good bar across New Zealand. It’s nice when people like Bill step up and demonstrate that we have a good bar.”

When Mr Pawson contacted him to see if he could set up a trust for the bene� t of these two little children, Mr Holland was only too pleased to assist.

Because he is working pro bono, “the whole of this amount will be available to these little girls”. And given that the reparation is only $29,000, “you don’t want to swallow it up with legal fees,” Mr Holland says.

“As lawyers, we are a very privileged group in our society. We are very fortunate to be in the position that we are, and it’s one that carries certain responsibilities – social responsibilities.

“We are in such a fortunate position in that we can do it. We have knowledge and expertise that others don’t have.”

When the idea of talking with LawTalk was � rst broached, Mr Holland was reticent, but on re� ection he decided that it would be a good idea to help get the message of the importance of pro bono work emphasised, particularly for young lawyers and law students.

“This is what you do. This is the way that

lawyers act,” he says.“It’s the sort of thing you will be telling

your kids to do. It’s the sort of thing I tell my kids to do and they do it. We’ve got 38 lawyers here [in Holland Beckett] and there is a culture of pro bono within the � rm.

“And I know a lot of other � rms and a lot of other lawyers are doing exactly the same thing.

“What I’ve done is no big deal. It’s some-thing a lawyer has to do. [The mother] can’t do it for herself. But it’s a big deal for her and it’s just made things a whole lot easier.”

Helping in this way brings personal rewards, too, Mr Holland notes.

“You feel good about it, and you’re entitled to feel good about it. It’s nice knowing that you can make a di� erence – that you are helping people.”

On 7 April, Mr Crisp was sentenced to 250 hours community work by Judge Christopher Harding in the Tauranga District Court. He was also ordered to pay $29,000 in emotional harm to the Greg Woledge Trust, $9,000 in emotional harm to Ashley Donkersley, $11,000 to the driver of the third vehicle involved in the crash and $16,134 for damage done to the bridge. He was also disquali� ed from driving for 12 months.

Lawyers who would like to contribute to the Greg Woledge Trust can contact either Mr Holland, phone 07 578 2199, or Mr Pawson, [email protected].

09LawTalk 840 · 28 April 2014 ·

Canterbury law firm White Fox & Jones have made Glen Ryan

a partner. Glen is a civil and commercial litiga-tor with a particular interest in contract and commercial dis-

putes, insolvency, insurance and property litigation. Glen worked in Christchurch and Sydney before joining White Fox & Jones in October 2013.

Bell Gully has ap-pointed three new partners and four new senior associates. The partners are two commercial litigators, Rachael Brown and Sophie East, and tax specialist Jarrod

Walker . R a c h a e l specialises in public law, Māori legal issues and employment law, including health and safety issues. Rachael is an advisor to organi-sations in both the public and private sector, together with a number of iwi. Sophie joined Bell Gully’s litigation team in 2009 after four years as an associate in the New York office of White & Case LLP. She has particular focus on

acting for corporate clients in commercial litigation and arbitration, including complex

contractual disputes and disputes involving company and securi-ties law. Jarrod is part of the firm’s national tax team. He advises on all aspects of cor-porate tax for financial institutions and public and private companies including their trans-actional work. Before joining Bell Gully, Jar-rod spent eight years at Clifford Chance and Allen & Overy where he advised a wide range of global financial insti-

tutions. The four new senior associates are Kirsty Dobbs, Paula Ormandy,

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PEOPLE IN THE LAW, Continued...

made under the 1972 or 1982 Accident Com-pensation Acts. Generally, the appeals and reviews considered by the authority relate to injuries that occurred before 1 July 1992. Mr Plunkett has previously held appointments to the Immigration and Protection Tribunal, Deportation Review Tribunal, Residence Review Board, Removal Review Authority and Refugee Status Appeals Authority.

O N T H E M O V E

Rachael BrownRachael Brown

Sophie EastSophie East

Jarrod WalkerJarrod Walker Jane StandageJane Standage

Campbell PentneyCampbell Pentney

Kirsty DobbsKirsty Dobbs Paula OrmandyPaula Ormandy

10 · LawTalk 840 · 28 April 2014

Campbell Pentney and Jane Standage. Kirsty is a litigator and advises across a range of areas including construction, oil and gas, public law and intellectual property. During 2012 Kirsty spent time at the UK Bar on a Pegasus Scholarship. Paula is a commercial property specialist who also has particular specialty in advising on signifi-cant New Zealand infrastructure, roading and construction projects. Her experience includes advising on the Auckland railway electrification project and on construc-tion contracts and procurement processes surrounding the rebuild of Christchurch. Campbell is an indirect tax specialist and has been a member of the Bell Gully tax team since 2004. He advises on GST and is also experienced in customs valuation, tariff classification, rules of origin and excise duties. Jane is a litigator who has joined Bell Gully after two years as an associate in the London office of Allen & Overy. She began her career in New Zealand first as a judge’s clerk to Justice Susan Glazebrook, then as a barrister in Thorndon Chambers in Wellington.

Colin Eason is the new Law Society

Canterbury branch President, succeeding Rachel Dunningham, who has been appointed a High Court Judge. The branch’s Vice-President when Ms Dunningham joined the bench, Mr Eason was subsequently elected to the Presidency by the branch Council. He will serve in that role at least until the branch’s annual meeting in June.

Mr Eason grew up on the Banks Peninsula, coming from a family where nobody had ever gone to university.

While still at secondary school, he already knew he wanted to become a lawyer. In fact in his last year of school, Mr Eason used to sneak out of class, bike into the city and sit in the back of the High Court, or Supreme Court as it was called then.

“I was totally mesmerised by it.”He sat through both criminal and civil

trials and “these trials seemed to be full of re� nement and great speeches and fantastic clothing and things like that.”

So he found himself attracted to the law, although it “was more about doing things

in court than the attraction of the law, the written law,” he says.

After graduating at Canterbury University, Mr Eason joined the � rm now known as Parry Field Lawyers. That was, he considers, a very good choice as partners Glyn Parry and Brian Field were excellent teachers and gave him “a very sound upbringing, not necessarily in the law itself, but in how you � nd the law and practise it.”

Following that, he worked in a variety of practices, including being in partnership in two smaller � rms, running his own practice and returning to Parry Field.

In 2008 he moved to the independent bar, joining Gary Collin and Lynne Harrison to form Pegasus Chambers.

His three main areas of practice, although not exclusive, have been in the Family Court, acting for children and sometimes parents, in the Youth Court and in a range of Criminal Court matters.

Mr Eason lives on a farm and raises Angus cattle. “I’ve always enjoyed that, and it’s great to get out of the city,” he says.

He is married to Joanne, who is a teacher at a private Anglican School, Cathedral Grammar, in Christchurch. They have four sons: James, who is a doctor; Tom, who is an actor; Ben, who is a third-year law student and Luke, who is studying chemistry and psychology.

As well as farming, Mr Eason enjoys skiing and music. He plays the piano and is in a piano performance class run with the help of Canterbury University.

New Canterbury branch President

The New Zealand Law Society’s

Auckland Young Lawyers held its latest Ladies of the Law Seminar Series on 26 March, hosted by Minter Ellison Rudd Watts.

Justice Patricia Courtney was the speaker at the event and spoke on her 30 years in the profession. After graduating LLB from

At the recent Ladies of the Law seminar (from left) Minter Ellison Rudd Watts partner Cathy Quinn, Jessie Jarvie and Justice Courtney.

Ladies of the Law Auckland University in 1982, Justice Courtney joined the Department of Trade & Industry as an investigating o� cer in November 1982 and in 1983 became a sta� solicitor at Heaney Jones & Mason. In 1986 Justice Courtney moved to McElroy Milne and became a partner of the � rm in 1989. In 1992 she was a founding partner of the � rm of McElroys and was senior partner from 1998 until her appointment as a High Court judge in 2004.Continued on following page ...

11LawTalk 840 · 28 April 2014 ·

Ian Hasell is the new President of

the Corporate Lawyers Association of New Zealand (CLANZ). He was elected unopposed in the April CLANZ committee elections.

Mr Hasell succeeds Grant Adam, who has served as President for the past two years. He will begin his term at the Annual General Meeting on 16 May.

The committee’s three other executive positions were also won uncontested. Dr Katie Elkin will serve as the new Vice-President, Christopher Guy will continue as secretary and Grant Adam will move into the position of treasurer.

David Dunbar, Sally McKechnie, Katie O’Sullivan, James Radcli� e and Jeremy Valentine were re-elected to the com-mittee. Beverley Curtis, Erin Judge and Deborah Malaghan were newly elected to the committee.

It was the � rst CLANZ election to be held exclusively online via voting website electionz.com. Mr Hasell says the concept suits CLANZ as it will ensure more voter participation among the membership.

“Holding the election vote at the Annual General Meeting, during the annual CLANZ conference, always resulted in a low level of voter participation and reduced its relevance to the majority of CLANZ members,” he says.

“To hold it online will mean proper con-tested elections for the whole membership to decide on, not just those who turned up to the meeting.”

Mr Hasell says CLANZ has evolved from its establishment in 1987, with the Law Society’s split between regulatory and representative functions giving it an even more important role to play for in-house lawyers.

“In-house lawyers are very spread out across the country and are often in one- or two-person legal teams. One of the reasons I joined the CLANZ Committee was because I was by myself and had very little contact

with the in-house profession.“So one of the things we have been try-

ing to do at CLANZ is increase interaction between in-house members with more social and educational events, and trying to assist members who are in smaller centres to network with their colleagues.”

Mr Hasell’s decision to run for CLANZ President followed several years of serving on the committee, and he described the move as the next logical step.

He joined the executive committee as communications director in 2009. For the past term he has served as conference direc-tor for next month’s 27th annual CLANZ conference in Dunedin.

“With CPD commencing in April, the theme for this year’s conference was always going to be educational to allow lawyers to complete a good chunk of their CPD hours. We have created black letter law and soft skill seminars which will be useful for all in-house lawyers regardless of whether they’re public or private sector based.”

ChristchurchJudith Ellen BullinHamish Eoin CameronAndre Duncan de VilliersGrant Kennedy EdmundsonJames Christopher FergusonNorthando Rumbidzai GwazeTracey HewittKatie Melissa Jackson

Lauren MeesterStuart John MillsBriar Evelyn MulhollandChristopher Gavin NolanRachel Annie StandringLois Elizabeth StoneJoanne Catherine TaylorShaanah Kirsti ValdezYunxia Zhang

Welcome tothe profession

Kathryn Hickling

has joined Malloy G o o d w i n H a r f o r d in Newmarket after returning to Auckland after 10 years practising in Melbourne. Kathryn is a property lawyer

whose experience includes commercial and industrial leasing, acquisitions and disposals, franchising, property development and due diligence appraisals.

Greg Arthur has retired from AJ Park, where he was a partner, to become a barrister. An intellectual prop-erty litigator, Greg was with AJ Park for 25 years. His last day at

the � rm was 31 March, after which he com-menced practise as a barrister, specialising in intellectual property, at Thomas More Chambers in Wellington.

New CLANZ President

Mr Hasell has worked in-house for his whole career. He started as a prospectus manager at a start-up property syndicator called Dominion Funds which went on to be the NZX listed DNZ Property Fund. After 14 years he became GM Corporate Services and Company Secretary responsible for corporate governance, NZX compliance, investor rela-tions, IT and legal work primarily in relation to securities, property and commercial law.

After DNZ listed he decided on a change and is currently with Mitre 10 as associate general counsel.

ON THE MOVE, Continued...

The New Zealand Law Society welcomes the following recently admitted lawyers to the profession.

12 · LawTalk 840 · 28 April 2014

Mark Bullock was elected the new

Whanganui branch President at the branch’s annual meeting on 4 April. He succeeds Kathryn Crooks, who served as President for two years.

Mr Bullock was born and raised in Whanganui and studied law at Canterbury University. After graduating Mr Bullock had some time out rowing locally and in Cambridge before returning to home, where he has practised since 1994.

Mr Bullock was employed as a barrister’s pupil before practising on his own account in 1996. In November 2011 he joined the long standing Whanganui � rm Jack Riddet Tripe (known as JRT Lawyers) where he is now the principal.

New Whanganui branch President

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He has a strong litigation background in family, criminal, civil and employment law. Since joining JRT Lawyers he is enjoying the challenges of general practice and property law.

Mr Bullock is passionate about his cli-ents’ continuing access to justice. He is an approved legal aid provider for civil, family, and criminal matters. Mr Bullock is a youth advocate, a family legal advice service provider and lawyer for child.

Mr Bullock has a long standing interest in alternative dispute resolution. He is an accredited mediator with LEADR and is applying to be an FDR provider under the new Family Justice regime.

He is also on the board of trustees at the Community Law Advice Wanganui.

Mr Bullock was a keen sportsman in his youth, playing rugby, rowing and later cycling and multisport. He now spends as much of his spare time as he can with his wife Fiona and their four young children. They are often involved watching and coaching the children’s sport. When time permits he enjoys time out hunting and � shing.

Harry Mallalieu was elected the branch’s Vice-President at the annual meeting, and Scott Oliver and Sarah Little were elected as Council members.

WellingtonAyesha Myra AminAnneliese Rebecca BostonJordanna Lee BowmanRenee Marie ButlerPeter David CallusNicky ChanSean Patrick Riddiford ConwayKlaudia Ariane CourteneyStewart James DalleySara Francisca Redgrave DibMartien Timothy DuisJessica Mere EnokaAmy Marie Farr

Zoe Charlotte Hazlitt HallidayCasey Anna Jan HaverkampBenjamin Timothy HehirZso� a Katalin Klara HellyerEmma McWhinnie HodderTam Paul IrvineJohn Alexander JebsonNigel John JemsonRosara Ann Betham JosephJason KlapprothNatasha Maria LewisMichael Graeme Arthur MaddenSarah Elizabeth McDowellKate Frances Neilson

Nicholas John NewberyPiri Rawhiri NorrisLidewij Oosterho� Laura Claire O’SullivanAnjali SarmaAndrew James Schrii� erVincent Peter SchumacherDavid Roger Guild SmithScott Anthony SonnemanClare Elizabeth TattersallAdèle Rose TaylorKadia Maree TurnerKatherine Stacia VerryElla Mary Watt

13LawTalk 840 · 28 April 2014 ·

The International Council for

Commercial Arbitration (ICCA) has accepted a joint bid by Australia and New Zealand for its 2018 conference to be held in New Zealand and Australia.

The bid has been cast with the support of the New Zealand Bar Association, the New Zealand Law Foundation, Attorney-General Chris Finlayson QC and Justice Minister Judith Collins. The bid won against Hong Kong, Moscow and Kuala Lumpur.

“This is at least in part a re� ection of New Zealand’s growing reputation as a centre for international commercial arbitration,” AMINZ Executive Director Deborah Hart said.

“Increasingly New Zealand is being seen – and appreciated – as independent, neutral and not corrupt, a country with a developed infrasructure yet relatively inexpensive to do business in. All of this is great news for our arbitrators and good news for the local economy, too, since each of these arbitrations usually brings in more than $1 million to the host country.”

World’s biggest arbitration event coming

Auckland lawyers got a taste of

Shakespeare at a branch collegiality event on 19 March.

After pre-show canapés for an hour in the Logan Campbell Room at the Northern Club, those attending walked to the outdoor theatre in the university garden for the Auckland Summer Shakespeare event.

This featured Pericles, Prince of Tyre. Although one of Shakespeare’s lesser known works, it is one of his most successful – a fantastic tale of voyages, piracy, death-defying escapes, captivity and family lost and found.

John Collinge and his wife at the recent collegiality event that took in Auckland Summer Shakespeare.

Lawyers take in Shakespeare

Nominations are open for the 2014

CLANZ Awards, which will be presented at the CLANZ Conference Dinner and Awards Evening at the Dunedin Town Hall on 16 May.

The awards will be made in four categories: Chapman Tripp Public Sector In-House Law-yer of the Year, Greenwood Roche Chisnall Private Sector In-House Lawyer of the Year, MAS Young In-House Lawyer of the Year and the CLANZ Community Contribution Award.

A $5,000 award, paid to a cause of the winner’s choice, is available in each category.

More information and nomination forms are at www.clanzconference.org.nz/?page_id=15.

CLANZ Awards

Russell McVeagh is one of 12 New

Zealand winners in the 2014 Client Choice International.

One � rm and 11 individual lawyers from this country were named.

The awards were established in 2005 and aim to recognise law � rms and partners around the world for the excellent client service they provide. This year there are 450 individual winners across 73 jurisdictions.

The winners are chosen with a reader-ship survey of International Law O� ce and Lexology in-house counsel subscribers.

Clients are asked to rate individual lawyers and law � rms on the following client service criteria: quality of legal advice, value for money, commercial awareness, e� ective communications, billing transparency, tai-lored fee structures, response time, sharing of expertise, and use of technology.

The survey results are used to draw up shortlists for each work area and shortlisted candidates are then invited to submit up to � ve referees. Follow-up interviews are conducted.

The individual winners are chosen from relevant work sectors and the New Zealand winners are:Craig Shrive · Russell McVeagh,

aviationGerald Fitzgerald · Kensington Swan,

bankingRoger Wallis · Chapman Tripp, capital

marketsSarah Keene · Russell McVeagh,

competitionSarah Sinclair · Minter Ellison Rudd

Watts, energy and natural resourcesGraeme Quigley · Russell McVeagh,

general corporateCharlotte Henley · Kensington Swan,

intellectual property: copyrightKate Wilson · James & Wells

Intellectual Property, intellectual property: patents

Sarah Armstrong · Russell McVeagh, litigation

Tim Clarke · Russell McVeagh, public lawDaniel Meikle · Mayne Wetherell,

securities and structured � nance.

Top lawyers for client service

Auckland law � rm, Brook� elds has reached agreement with its Manukau-based partners that the Manukau o� ce will separate from the � rm in the middle of this year. Board Chairman Howard Johnston says that the separation has been under discussion for some time and will enable both o� ces to focus on their di� ering markets. For the Manukau o� ce this includes a substantial private client practice including family law, civil litigation, trusts, property and commercial law. The central city o� ce will continue to focus on public law, institutions, banking, trusts and private clients. The Manukau O� ce will practise under the name Denham Bramwell from the existing o� ces at 3 Osterley Way, Manukau, and Brook� elds will continue to practise from its new premises at Level 9, 205 Queen Street, Auckland Central.

L AW F I R M N E W S

14 · LawTalk 840 · 28 April 2014

Auckland barrister Allan Cooke is

the new chair of the Family Law Section, succeeding Garry Collin.

Having practised family law for almost 30 years, Allan � nds it a “fascinating area of the law to be in”. That was not, however, always the case. “When I was at university, at Victoria, I didn’t like family law at all.”

After graduating, he worked for a couple of government departments in Wellington for about 18 months then moved to Auck-land as regional solicitor for the Ministry of Transport, a role he didn’t much like.

He then moved to Meredith Connell for about 18 months, and ended up doing care and protection cases under the old Children and Young Persons Act, which was his introduction to family law.

After moving into his own practice, Allan undertook some criminal work. However he found that jury trials cutting into evenings “wasn’t doing particularly much for the life at home”, especially given that he had a new daughter, so he ended up spending more and more time in the Family Court.

It is now an area he has come to love, “because you work with people and you are also dealing with children and children’s welfare, which is a real passion of mine”.

He is married to Sue and they have three adult children, Frances, who lives in Wel-lington, and Hannah and Madeleine who

both live in Auckland. He has a step daughter, Koha, who lives in Auckland and whose partner is Brent.

One of Allan’s interests has come as a result of Koha and Brent, who are both � uent in Te Reo as are their children. “Sue and I have gone to Unitech [Institute of Technology] to study Te Reo and we are now enrolling in the full immersion class at Unitech in the semester starting after Easter.” His other interests include reading, and music (vinyl) and going to the gym.

Postgraduate study has been another focus for Allan. In 2008, he completed a Postgraduate Diploma in Child Advocacy course with Otago University. His research paper was Contact issues for children who have been permanently placed out of their birth families: An examination of relevant literature and case law.

He undertook that study because he wanted to gain a better understanding of the issues and the theoretical underpinning of the work he does as a family lawyer – in representing parents, foster-parents/caregivers and children.

Otago University sta� then suggested that he consider undertaking a PhD and in December he submitted his thesis, which examines the responsibility of the State for children placed permanently in State care. The thesis has now been marked and Allan is on track to graduating later this year.

Allan’s family law practice started in South Auckland, in Otahuhu and then Manukau City. He has been based in Auckland since 2000, although his practice is still primarily South Auckland in terms of where his work comes from.

The new Family Law Section Executive also includes: Catriona Doyle (deputy chair), Tim Black (treasurer), Ophir Cassidy, Michelle Duggan, Murray Earl, Erin Ebborn, Sharyn Otene, Jodi Ryan and Kiriana Tan.

New Family Law Section chair

This is the 2013 criminal

conviction rate in China.In a report to the annual session

of the Communist Party-controlled National People’s Congress, Zhou Qiang, head of the Supreme People’s Court, said Chinese courts convicted 1.158 million people in the 954,000 criminal cases heard.

Only 825 people were exonerated, he said in the report, in accordance with rules including “protecting human rights” and “excluding illegal evidence.”

His report also noted that: “The rulings in some cases were not fair … which harmed the interests of the litigants and undermined the cred-ibility of the law.”

99.93%

The Law Society’s Nelson branch held

a very successful “End of the Summer Wine” social event on Saturday 5 April, with 96 in attendance.

It had been a lovely, hot sunny day and

those attending took advantage of the last rays of the summer sun to enjoy � ne wine, tasty nibbles, and collegiality on the deck of the Tasman Bay Cruising Club, overlooking the marina at Port Nelson.

End of the Summer WineAshleigh Woodhouse (left) and Max Tait at the “End of the Summer Wine” social event.

At the “End of the Summer Wine” (from left) Callum Vessey, Sophie O’Donoghue, Mark O’Donoghe and Mark Dollimore.

15LawTalk 840 · 28 April 2014 ·

Practising WellPractising WellPractising WellPractising WellPractising Well

Favours come in all shapes and sizes

and our responses to being asked for a favour are just as varied but we all need help at certain times and getting that help generally means we have to ask for it.

So how do we do this e� ectively? Here are a few golden rules to help navigate this tricky area.

Recently I was heading out of town for a much needed long weekend. I asked my friend from across the street if she would mind just popping over to feed the cat twice a day to which she responded that she would need to pass as she didn’t feel comfortable with the amount of time this would take.

I must admit I was slightly taken aback as it is a few minutes at the beginning and end of each day and I was expecting a resounding yes.

My initial reaction was one of shock and I stumbled my way through the small talk that came next and promptly left with a typical Kiwi response of “no worries”. I

Asking for favoursHow to get what you want

and say “yes” when they really just wanted to run for the hills, so here are my top tips to make it easier:

Just askMany people make the mistake of start-ing with small talk before launching into the request. This comes across as insincere, leaving people to think that you are not really interested in them and all you want is the favour. Five minutes of talking about the kids followed with a “oh by the way could you look after the kids tonight” just isn’t a good look. Turn it around. Ask � rst and � ll the gaps in after.

Make it easyRecently a friend asked me to attend a meeting to give a presentation on stress. She knows that I hate driving at night so she arranged for me to be picked up and dropped o� after the meeting so it made it easier for me. This made

me feel valued and respected. I went to the presentation and gave it my all to make sure my friend got what she wanted for her team, so everyone was a winner. By making it as easy and stress-free as possible she made sure that she got what she wanted and that I had a good experience, too, which will certainly make me more open to doing it again next time.

Be honestIf you are asking a favour of someone be honest as to the reason why. Resist the urge to make up a huge story with exaggerated reasons for the favour as you think this will get you a more positive response. Keep it simple. Explain your situation and be direct about your needs. Try not to use guilt inducing tactics or pull on the heart strings as this can leave the other person feeling manipulated and used which is de� nitely never a good thing.

ReciprocateWe all know someone who never returns the favour. They are usually quick to ask for them but are never available when you need someone to walk the dog or water the plants. This generally leads to people feeling frustrated and resentful and can have an impact on the relationship. If you are willing to ask for help then you also need

By Melanie Shaw went home and complained to the cat who listened attentively to my dilemma. I had left it too late to get her into the cattery as I had assumed my favour request would be granted – WRONG!

So what did go wrong here? Well I made an assumption that she would be thrilled to look after my gorgeous Pixie. I mean who wouldn’t be! It never occurred to me that she might be busy, not like cats, or just plain didn’t want to do it. So my learning from this experience was to always have a plan B and never assume you will get a “yes” when asking for a favour.

Upon re� ection, my friend gave a very strong and appropriate response. She could have just said “yes” and then felt resentful towards me for asking, so at least here it was very clear that our friendship was strong enough for her to be totally honest – something that I feel grateful for and gave me food for thought to write this article.

Asking for favours can be tricky and we do often just expect people to say “yes”. Often they will but then feel annoyed about it because they felt pressured to be polite

16 · LawTalk 840 · 28 April 2014

to be willing to share your help in return. Obviously it isn’t always possible and there will be times when you can’t reciprocate but when you can, do.

Be gratefulMy Gran always taught me to pay it back, no matter how small the gesture. It still counts, she would say, and this is something I have always remembered. So when my colleague helps me out of a jam at work I leave her a bag of her favourite lollies on her desk or a post it note with something funny on it just to acknowledge her input. Thank you cards and small gifts are always appreciated and usually followed up with the statement “ah you didn’t need to do that” but we all secretly love that you did. It doesn’t even have to cost anything. A post it note, a hug, an email – there are so many easy ways to show your appreciation.

Be prepared to accept rejectionSometimes people will say “no” and this is � ne. We cannot possibly know what is happening in their life, what commitments they have or where their comfort zone ends.

To be honest, if someone asks me to feed a cat I love it because I love cats and if I have time I will but don’t ask me to feed your pet tarantula because my fear of big hairy eight legged creatures would bring about a fast refusal. Don’t take the refusal personally. Just accept it graciously.

Favours are a key part of any relationship from the o� ce to the neighbour or even a complete stranger. Sometimes we need to ask for help. If we learn the art of asking for favours it can make all the di� erence to meeting our needs and keeping our relation-ships healthy.

I have since learnt that when I asked my neighbour to feed Pixie the cat she had just taken on some extra work and was feeling really pressured to get things done so my favour request was overwhelming for her at that time. Knowing this has enabled me to o� er her support by o� ering to walk her dog on an evening until she gets things back on track. I get to hang out with a cool German Shepherd called Barry and she gets to balance her evening out a little easier. It’s a win-win situation!

Melanie Shaw has 20 years’ experience of working in the mental health � eld and has specialised in trauma therapy work in the United Kingdom where she has spent most of her career. While in New Zealand, Melanie has worked in in-patient settings as a senior clinician specialising in mental health rehabilitation and recovery with service users with high and complex needs. Melanie is now the mental health specialist at Lifeline Aotearoa where she works to support, develop and oversee mental health services with a signi� cant focus on the National Depression Initiative and peer support services.

solving problems and resolving complaints for consumers and fi nancial service providers

Did you know that from 1 July all lawyer nominee companies off ering a contributory mortgage service must belong to a dispute resolution scheme?

FSCL, known for its consultative approach to complaints with a focus on early resolution, has the largest member number of any dispute resolution scheme in the sector with over 5,500 members.

Off ering competitive fees and a commitment to keeping fees as low as Off ering competitive fees and a commitment to keeping fees as low as Offpossible, as a not for profi t, FSCL returns operating surpluses to scheme members as fee reductions.

CEO and decision-maker on complaints, Susan Taylor, is a lawyer with over 20 years’ experience in fi nancial complaints and disputes. All case managers are lawyers with mediation training and fi nancial services experience.

FSCL is governed by an independent Board of consumer and industry representatives and is chaired by barrister Kenneth Johnston.

FSCL is a member of the International Network of Financial Ombudsmen.

committed competent competitive

For more information on joining FSCL visit: www.fscl.org.nz or contact Trevor Slater trevorslater @ fscl.org.nz phone 04 474 1364.

Favours are a key part of any

relationship from the o� ce to the

neighbour or even a complete stranger

17LawTalk 840 · 28 April 2014 ·

Effective PracticeEffective PracticeEffective PracticeEffective PracticeEffective Practice

International law awards are a growth

industry. While some awards are well estab-lished, most have arisen in the last decade. For the award providers it’s a well-established formula for credibility and good earnings in an uncertain � nancial environment. Establish awards which recognise achievement by law � rms and the winners will ensure their success and your name is publicised.

Most of the international awards follow a set formula. They are either won through being listed in a directory of high-performing lawyers or they are managed by an interna-tional business publication which is almost invariably published or owned by an English company. There are no international family or criminal law awards.

To help make some sense of the multiplicity

of the various awards, here is a quick guide to some where New Zealand � rms and lawyers have been among the winners. The focus is on international awards. Last month Australian company Key Media announced that it would be continuing the New Zealand Law Awards which it purchased from LexisNexis NZ Ltd. This year’s event will be held in Auckland on 6 November and awards will be made in 22 separate categories. The New Zealand Law Society’s Auckland branch will also be repeating its successful 2012 Auckland Law Awards later this year.

Acquisition International M&A AwardsA monthly corporate � nance magazine owned by English company AI Global Media

Ltd. Its annual awards ceremony has been held since 2010. Awards are decided by votes and in-house research. A large number of awards are made (such as Dental Law Firm of the Year – UK), with 16 New Zealand � rms winning something in 2013.

ALB Australasian Law AwardsThe 2013 awards were the last. Australasian Legal Business magazine has been folded into Asian Legal Business by owners Thomson Reuters and it appears that the Australasian awards have folded as well. This year’s Asian awards do not contain any Australian or New Zealand events.

Chambers Asia Pacific AwardsLondon-based Chambers and Partners has

By Geoff Adlam

The world of prizes

18 · LawTalk 840 · 28 April 2014

published rankings of lawyers and law � rms since 1990 and now covers 185 jurisdictions. Ratings are done by researchers who inter-view lawyers and clients and assess published information. The annual Chambers Asia Paci� c Awards for Excellence include a New Zealand Law Firm of the Year, with Chapman Tripp winning in 2014. Webb Henderson is the only New Zealand-connected � rm to appear in the Asia Paci� c areas of practice rankings (for TMT). David Williams QC is listed in Asia Paci� c’s most in-demand international arbitrators.

Corporate INTL Magazine Legal AwardEnglish company JRS Corporate Ltd publishes a monthly international business magazine and other resources. Its global legal awards have run since 2008 and commemorate “those who have been successful over the past 12 months and who have shown excellence not only in expertise but in service”. The awards are independently judged by a panel after nominations by readers and others on its database of “business leaders and decision makers”. In-house research narrows this down to a shortlist. No New Zealand � rm won an award in the 2013 Asia and Oceania section.

Finance Monthly Law AwardsThis English-owned international publication established its Global Awards in 2008. The awards recognise law � rms and professionals who have, over the past 12 months, consist-ently excelled in all areas of their research and set new standards of client service. Votes and feedback from readers are combined with analysis of client feedback, market data and other research by in-house sta� . A number of New Zealand � rms win awards in the di� erent practice categories each year.

Global Competition Review Law AwardsOwned by London-based Law Business Research Ltd, the Global Competition Review publishes annual guides to the world’s

leading competition law and economics practices. The GCR 100 is a guide to the world’s leading competition law and eco-nomics practices. Information on winners is generally available only to subscribers, but a number of New Zealand’s big � rms have claimed a mention.

IFLR1000This is a big operation, with sta� based in New York, London and Hong Kong. Owned by Euromoney’s Legal Media Group, it pro-duces an annual guide to the world’s leading � nancial law � rms. The 24th edition covers 120 jurisdictions. It features selected leading lawyers and rising stars. While � rms may list themselves, the IFLR1000 researches and ranks lawyers and law � rms by practice area and performance. The latest edition lists and ranks 15 New Zealand � rms in the four main categories, along with 73 “leading lawyers”.

International Law Office Client ChoiceGlobe Business Publishing Ltd’s Client Choice is a searchable database of lawyers and law � rms which is designed for use by senior in-house counsel. Inevitably, Globe is an English company. The annual awards were established in 2005 with the objective of recognising law � rms and partners around the world for the excellent client service they provide. Winners are chosen with a readership survey of International Law O� ceand Lexology in-house counsel subscribers and this is followed up by research. This year there were 450 individual winners across 73 jurisdictions, with 11 New Zealand lawyers winning in various New Zealand practice areas. Top law � rms were chosen in 40 jurisdictions, with Russell McVeagh the 2014 New Zealand winner.

Managing Intellectual Property Global AwardsThe operator is a London-based company which provides news and information on intel-lectual property developments. An annual

The art of judgment writing“Mr Kedzlie was in the witness box for a number of days and his credibility was shattered by a skilful and unrelenting cross-examination by Mr Quigg on all aspects of his evidence, including basic issues such as his quali� cations and current employment situation. Mr Quigg left no stone unturned as he challenged the witness to try and explain and justify the many baseless conclusions and assumptions that characterised his evidence. Without prolonging this judgment by going into details, I simply record that I did not � nd Mr Kedzlie a credible witness and I reject his so-called expert evidence.”

Judge AD Ford, Snowdon v Radio New Zealand Ltd [2014] NZEmpC 45 (1 April 2014) at para 124.

The mostThe longest criminal trial in New

Zealand history is believed to be the trial of the Tukuafu family on 261 burglary and motor vehicle conversion charges at Manukau District Court in 2001 (but held in Auckland High Court because of a lack of space at Manukau). The trial of the seven defendants – � ve brothers, a son and a father-in-law – spanned 30 weeks, with 90½ jury sitting days spread over that time. Interlocutory applications and rest days pushed the total duration to over half a year. After 3½ days of deliberation the jury found the defendants guilty of 247 charges. They received varying prison sentences. The legal aid cost was $1.14 million and 17 lawyers (14 of whom appeared for the defence) and around 600 witnesses and 700 exhibits were involved. One of the subsequent appeal grounds was that the complexity and length of the trial resulted in such unfairness to the appellants as to amount to a substantial miscarriage of justice. This was not accepted by the Court of Appeal ([2003] 1 NZLR 659).

award ceremony presents Global Awards on a regional basis, including South, South East Asia and Australasia. The magazine also publishes surveys and rankings. A number of New Zealand � rms and lawyers are listed and ranked and Simpson Grierson won the 2014 New Zealand Law Firm of the Year award.

The Legal 500 Asia PacificOwned by English publisher Legalease, this provides guides and rankings of law � rms around the world, including New Zealand. Researchers talk to law � rm clients and also travel to over 50 countries a year to carry out more detailed research. The New Zealand section is now available as a separate e-book. The latest edition lists and ranks 32 New Zealand � rms in 10 di� erent categories, as well as a good number of individual lawyers.

Who’s Who Legal AwardsAnother Law Business Research Ltd publica-tion, this publishes an annual Who’s Who Legal 100, listing the world’s top 100 law � rms based on “our extensive research into the global business law marketplace”. An annual awards ceremony includes country awards, with Simpson Grierson winning the 2014 award for New Zealand.


19LawTalk 840 · 28 April 2014 ·

That was the law


Sydney lawyer Denis Anderson, 78, is

possibly facing disciplinary action after he was allegedly caught using a dead client’s Melbourne Cricket Club card to gain entry to the prestigious Members Reserve at the 2013 AFL grand � nals. The client died in 1997 and it is alleged that Anderson may have used the membership to watch the grand � nal for a number of years. It appears the deceased’s annual membership fees were paid each year following his death. There are over 230,000 people on the waiting list for membership of the Melbourne Cricket Club. Those who became top tier MCC members in 2013/14 had apparently joined the waiting list between July and December 1989. Full members can use the MCG Members Reserve for all cricket matches and AFL � xtures. The club says it was tipped o� that a man was using the membership card of a deceased person and

Life in the law

it has reportedly referred Anderson to the New South Wales Legal Commissioner. If found guilty of professional misconduct he could be struck o� or suspended.

A law � rm in Iowa, United States, has

launched version 2 of its Oh Crap App! which is designed to advise people what they can and cannot do if stopped for suspected drunk driving. The � rm of Gourley, Rehkemper & Lindholm PLC specialises in drunk driv-ing, personal injury and criminal defence, describing itself as employing “aggressive, painstakingly detailed attorneys”. The app lists basic legal rights and has a blood alcohol calculator. Anyone who is stopped hits the emergency “Oh crap” button and receives advice such as “the less you say the better” or “lawyer up!” The button also turns on the phone’s voice recorder to record discus-sions with the law enforcement o� cer. The audio � le is sent to a secure server. Another function sends a quick emergency message to Kenny’s Bail Bonds to assist with being bonded out of jail after arrest.

If you felt slightly uneasy at the

“aggressive” claim in Grouley, Rehkemper & Lindholm’s advertising, check out the video clip which Pittsburgh criminal defence lawyer Daniel Meussig has released on YouTube. The clip states “this is a dramatization” and then shows various crimes being successfully committed. All the perpetrators stop, face the

camera, smile and give a thumbs-up, saying: “Thanks Dan”. After a while Dan himself appears under the caption “Real Defense Attorney”. “America was built on freedom; not on a bunch of people with more money than you, telling you what you can and cannot do with all their stupid [� ngers in the quote position] ‘laws’,” he says, before proceeding to state that he stands “ready, willing, able and committed to defend you on all manner of criminal charges”. “Trust me. I may have a law degree but I think like a criminal,” says Mr Meussig. While there has been some debate about the intent behind the advert, Meussig himself told Reuters that he wanted to connect with his potential clients in a way that people from his generation could understand. The clip has been viewed well over 200,000 times and a Pittsburgh bar association has expressed its disgust.

Jokes about lawyer charging have

emerged with the launch of the LexisNexis “Money Finder”. This is part of the newly released cloud-based Firm Manager applica-tion. A press release from LexisNexis says Money Finder is an “elegantly simple” tool for discovering unbilled hours for work an attorney may have completed. “The Money Finder tool automatically searches and sorts through tasks, meetings and documents created in the Firm Manager application and � agging those that have not been associated with a client bill for review.”

The Larceny Act 186750. Whosoever shall break and enter any

church chapel meeting-house or other place of divine worship and commit any felony therein or being in any church chapel meeting-house or other place of divine worship shall commit any felony therein and break out of the same shall be guilty of felony and being convicted thereof shall be liable at the discretion of the Court to be kept in penal servitude for life or for any term not less than three years or to be imprisoned for any term not exceeding two years with or without hard labour

and with or without solitary con� nement.The Act was repealed by the Criminal Code Act 1893. Section 50 was re-enacted as s251, with a maximum penalty of 14 years’ imprisonment with hard labour. A separate o� ence for crimes on religious properties disappeared with the Crimes Act 1908. It was in force for 41 years.

The Police Offences Act 19273. Every person is liable to a � ne not exceed-

ing � ve pounds who –(w) Rolls any cask, beats any carpet,

� ies any kite, uses any bows and arrows, or catapult, or shanghai, or plays at any game to the annoyance of any person in any public place, or obstructs any public place whether by allowing any cart or animal to remain across such public place, or by placing goods thereon, or otherwise;”

18. (1) Every person is liable to a � ne of � ve pounds who on Sunday in or in view of any public place, trades, works at his trade or calling, deals, transacts

business, sells goods, or exposes goods for sale.”

27 (1) Every person is liable to a � ne not exceeding ten pounds who sells, gives, or supplies any cigarette, cigar, or tobacco in any form to any youth under the age of � fteen years.

(3) No youth shall be convicted under this sec-tion for using or smoking tobacco, cigars, or cigarettes if he produces a certi� cate of a legally quali� ed medical practitioner to the e� ect that the using or smoking of tobacco, cigars or cigarettes is bene� cial to the health of such youth; and no person shall be liable to conviction for supplying tobacco, cigars, or cigarettes to any youth to whom such medical practitioner has given a certi� cate as aforesaid.”

The Act was repealed as of 1 February 1982 by the Summary O� ences Act 1981 (ss12 and 13 of that Act are relevant to s3(w) above, and sale of tobacco to someone under 18 is illegal under the Smoke-free Environments Act 1990, but with no age restriction on who can smoke). It was in force for 55 years.

20 · LawTalk 840 · 28 April 2014

The BookshelfThe BookshelfThe BookshelfThe BookshelfThe Bookshelf

This is the � rst new edition of Tyree’s Banking Law in New Zealand since 2003. Signi� cant changes have taken place in the intervening years in terms of the way in which we undertake banking transactions and the legislative environment in which � nancial transactions are conducted. These changes are all re� ected in the new edition of Tyree which has not just been updated in terms of the law but restructured in terms of content.

The new edition has seven authors as against six in the second edition. The 16 chapters (552 pages) of the second edition have become 13 (520 pages) in the third.

Chapter 1 establishes the environment of banking in New Zealand under the title Statutory Regulation of Financial Institutionsand, signi� cantly, this has grown from 40 pages in the second edition to 79 in the new edition. This is an extremely valuable chapter. As well as dealing with the Reserve Bank of New Zealand’s role, it addresses the regula-tion of money laundering and the attempt to combat the � nancing of terrorism. It deals comprehensively with the Anti-Money Laun-dering and Countering Financing of Terrorism Act 2009. This is particularly signi� cant for law practitioners, currently covered by the Financial Transactions Reporting Act 1996,

Butterworths Student Companion, Family Law, 2nd EditionBY RUTH BALLANTYNE

This is current as at 1 January 2014 but it includes discussion of some of the

impacts of the major changes to the Family Court which came into force on 31 March 2014. The book summarises and discusses 164 decisions on the various facets of family law. LexisNexis NZ Ltd, March 2013, 978-1-927227-86-2, 475 pages, paperback, $70.00 (GST included, p&h excluded).

Got a Kindle?The Legal 500 Client’s Guide to the New Zealand Law Market can be downloaded from Amazon for Kindles at a cost of $3.46. With 112 pages, the guide is taken from the 2014 edition of the Asia Paci� c Legal 500. The guide is also available on .epub format, which means it can be downloaded for most readers on Android or iPad devices.

There are few other New Zealand law books available for purchase for Kindle. Those which are include Reconstituting the Constitution (by Caroline Morris, Jonathan Boston and Petra Butler, $151.20), Applied Paramedic Law & Ethics: Australia and New Zealand (by Ruth Townsend and Morgan Luck, $52.19), A Simple Nullity? The Wi Parata Case in New Zealand Law and History (by David V Williams, $14.79) and From “Real Rape” to Real Justice (by Elisabeth McDonald and Yvette Tinsley, $19.25).

Tyree’s Banking Law in New Zealand, 3rd EditionReviewed by Richard Scragg as the intention is that the

2009 Act is to be extended to cover them. Practising lawyers will need to be very clear about their obligations concerning the carrying out of due diligence with regard to their clients and report-ing suspicious transactions, quite apart from advising their own clients who are a� ected by the legislation with regard to these same matters. The chapter also deals, brie� y, with the Criminal Proceeds (Recovery) Act 2009.

The six chapters on cheques in the second edition have been condensed into three and there are new chapters on secured transac-tions, documentary credits and payment systems. The shrinking of “cheques” and the addition of a chapter on payment systems re� ect changes in customers’ banking habits and techniques consequent upon technologi-cal developments in the nature of ATMs, EFTPOS, credit cards and electronic credits. The authors tell us (page 191) that over $35 billion goes through New Zealand’s payment systems each day – roughly equivalent to New Zealand’s GDP each working week. Change is also re� ected in the addition of a section on the Financial Service Providers (Registration and Dispute Resolution) Act 2008 in chapter 2: Regulation Protecting Consumers of Bank Products and Services.

The chapter on Securities (secured trans-actions) addresses security interests in both real and personal property but as

the author tells us: “It is not a comprehensive state-ment of the law. It is a � rst introduction …” It presents a clear but brief statement of the fundamental principles governing security interests in real and personal property but does not attempt to examine the case law and, having introduced the reader to the underlying concepts, leaves the reader to refer to

the other published works on these subjects for detailed analysis. This chapter incorpo-rates the “Banker’s lien”, formerly a chapter in its own right.

The book is clearly written and gives a highly accessible account of the law, which is stated as at 30 June 2013.

It may be that it should be given a new title. This turns on what you understand Banking Law to mean. The key to a new title may be found in the name of chapter 1: Statutory Regulation of Financial Institutions. Perhaps The Law of Financial Institutions would be a more appropriate title for future editions. Be that as it may, the new Tyree’s Banking Law in New Zealand is a valuable addition to the practising lawyer’s library and deserves to be widely read.

Richard Scragg is a Teaching Fellow at the University of Auckland, an enrolled Barrister and Solicitor of the High Court and contributing author to LexisNexis: Commercial Law in New Zealand.

impacts of the major changes to the Family

21LawTalk 840 · 28 April 2014 ·

Law Reform ReportLaw Reform ReportLaw Reform ReportLaw Reform ReportLaw Reform Report

The New Zealand Law Society has

made a submission to Parliament’s Privileges Committee on proposed legislation to clarify the scope of parliamentary privilege.

The Privileges Committee, chaired by the Attorney-General Chris Finlayson, is currently considering the Parliamentary Privilege Bill. The bill’s key purpose is to rea� rm and clarify the operation and scope of parliamentary privi-lege – the powers and immunities that enable the House of Representatives to safeguard its independence and carry out its functions.

The bill will alter the approach to parlia-mentary privilege taken by the Supreme Court of New Zealand in Attorney-General and Gow v Leigh [2011] NZSC 106 (regarding the scope of proceedings in Parliament) and by the Privy Council in Buchanan v Jennings [2005] 2 All ER 273 (the “e� ective repetition” rule).

The Law Society submission noted that members of the Law Society hold di� ering views on the merits of reversing those judicial decisions.

Some support the court’s approach which,

by narrowing the scope of privilege, allowed more scope for redress by individuals claiming to have been defamed or otherwise wronged.

Others favour the policy behind this bill because it may better protect Members of Parliament and their advisers from litigation and any associated “chilling e� ect” as they discharge their duties.

The Law Society submission does not enter into the merits of the policy choices represented in the bill. Instead it concen-trates on three key points. These are:• Clause 8: Is the de� nition of “proceedings in

Parliament” as clear as it could be? How does it apply where a Minister, or any Member of Parliament, seeks information, or receives it unsolicited, from o� cials or members of the public in anticipation, or in hopes of, a matter being raised in the House?

• Clause 8(4): How does the concept of privilege for e� ective repetition by a� r-mation, adoption or endorsement work when the repeater is not the maker of the original statement? Why should that

Parliamentary privilege to be clarified by legislation

attract absolute rather than quali� ed privilege, when it is only quali� ed privilege that applies to fair and accurate reports of proceedings in the House? In response to questions from the Privileges Committee, the Law Society suggested that the higher protection might be applied only to the MP who made the statement, and other MPs.

• Select Committees and public responses: Should Standing Orders be amended to permit persons to have responses to things said about them in parliamentary committees read into the o� cial record; similar to what they can do in respect of things said about them in the House itself?

Law Society spokesperson David Cochrane told the Privileges Committee that the threshold de� nition of “proceedings in Parliament” needed to be carefully con-sidered, in light of unforeseen and possibly complex scenarios.

The Law Society submission outlined a number of potential scenarios for the committee to consider.

Recent submissionsThe Law Society recently � led submissions on:• Psychoactive substances: proposed

regulations;• Import and export of gametes and

embryos: proposed advice to the Minister of Health;

• Disallowable instruments that are not legislative instruments (DINLIs) – submission to Regulations Review Committee inquiry into oversight; and

• Patent Co-operation Treaty Regulations 1992 – proposed amendment.

The submissions are available at www.lawsociety.org.nz/news-and-communications/law-reform-submissions

The Law Society recently addressed the following select committee:• Privileges Committee on 18 March 2014,

on the Parliamentary Privilege Bill.

22 · LawTalk 840 · 28 April 2014

From the CourtsFrom the CourtsFrom the CourtsFrom the CourtsFrom the Courts

Intercity and Nakedbus both provide

long distance bus services in New Zea-land. Intercity had 95% of the market until Nakedbus started up business in 2006. The competition has been good for consumers, with the cost of bus travel generally being much cheaper than it previously was before 2006, including $1 fares.

Nakedbus had a habit of annoying Intercity by using the word “intercity” in its advertise-ments and on its website, as its metatags and keywords for Google searching and advertising.

The two exchanged letters over several years. In Octo-ber 2012 Intercity discovered that searches for “inter city” on Google were producing Nakedbus advertisements containing the words “inter city”, for example “inter city buses from $1 – We’ll beat any inter city fare”.

Intercity issued proceed-ings against Nakedbus. The proceedings were heard in November 2013, and the High Court of New Zealand issued its decision on 12 February 2014: Intercity Group (NZ) Limited v Nakedbus NZ Limited [2014] NZHC 124.

Intercity claimed trade mark infringe-ment, passing o� and breach of the Fair Trading Act 1986. The trade mark claim was in two parts. Firstly, against Nakedbus’s use of the keywords “inter city” via Google’s AdWords. Secondly, against the Nakedbus advertisements that appeared in the Google results page.

KeywordsSurprisingly, there have been no proceed-ings in New Zealand considering the use of keywords.

The evidence demonstrated that Naked-bus’s use of the keywords “inter city” were resulting in signi� cant click-throughs and sales for Nakedbus.

Nakedbus argued that there was no use in the course of trade of Intercity’s regis-tered trade marks because the selection of

keywords is invisible to everyone, including consumers, except Nakedbus and Google.

Justice Asher agreed that this was not use as a trade mark. The use of the keywords was by Nakedbus when it purchased them before the placement of its advertisement, and then by Google when, through its search engine, it made the Nakedbus advertisement appear when “intercity” was typed in the search � eld. If it could not be seen by a consumer, it could not be “taken as being used as a trade mark”.

The judge distinguished European deci-sions such as Inter� ora Inc v Marks and Spencer plc [2013] EWHC 1291 (Ch) on the basis that the

New Zealand Trade Marks Act 2002 speci� cally requires the allegedly infringing use to be “taken as being used as a trade mark”. The use by Nakedbus of “inter city” as keywords was found not to infringe any of Intercity’s registered trade marks.

AdvertisingIn terms of Nakedbus’s use

of “inter city” in Google advertisements and on its website, Nakedbus argued that it was using the words descriptively, as in to travel between cities. The judge accepted that the words “inter city” have a descriptive meaning, but also that it is the name of a well known bus company in New Zealand.

Intercity produced a survey going to the question of whether New Zealand consum-ers use the terms “inter city” / “intercity” descriptively or use it to search for the Intercity bus company. The judge found that consumers travelling between cities were unlikely to use the terms “inter city” / “intercity” descriptively, but instead were more likely to use the word “bus” and the names of the cities, and when the terms “inter city” / “intercity” were used, they were used to � nd the Intercity website.

The judge concluded that Nakedbus had deliberately set out to use “inter city” as a trade mark and “rejected entirely” Nakedbus’s evidence that it only wanted to use the term to describe to consumers what it does.

The judge accepted that a consumer might think that the Nakedbus advertisements were Intercity advertisements. Intercity succeeded on its claim of trade mark infringement in respect of the advertisements. The judge rejected Nakedbus’s defence of “honest use”

Passing off and breach of the Fair Trading ActIntercity also brought claims under pass-ing o� and under the Fair Trading Act for misleading and deceptive conduct. In respect of the advertisements, the judge found that Nakedbus was passing o� its services as those of Intercity, and was also misleading and deceiving consumers under the Fair Trading Act.

The judge awarded declaratory and injunctive relief to Intercity. The parties had earlier agreed to a split trial in respect of account of pro� ts, and a further hearing will take place this year some time, subject to an appeal of course.

Kate Duckworth is a partner of Catalyst Intel-lectual Property in Wellington.

‘Inter city’ not descriptive in New Zealand

Paul Moriarty

Level 27, PwC Tower, 188 Quay Street, Auckland 1010P:09 363 3700 M:022 107 5787E:[email protected]

www.moriartyassociates.co.nz

Professional forensicaccounting services

in civil and commercial matters.

Investigative AccountingEconomic Loss Assessment

Relationship PropertyValuations

BSc FCA MInstD

By Kate Duckworth

Surprisingly, there have been no proceedings

in New Zealand considering the use of keywords

23LawTalk 840 · 28 April 2014 ·

Anti-Money LaunderingAnti-Money LaunderingAnti-Money LaunderingAnti-Money LaunderingAnti-Money Laundering

A recent debate conducted by the

Law Society’s Wellington branch revealed that lawyers’ ethical rules may be more effective than specialist legislation which tries to stop criminals using law firm trust accounts and other methods to launder at least $1.5 billion of organised crime pro-ceeds washing through the New Zealand economy each year.

So called “gate keeper” professions – the lawyers, accountants and real estate agents who structure, implement and facilitate tens of thousands of � nancial transactions each year – are temporarily exempt from specialist legislation designed to detect and deter money-laundering, the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act).

However, as reported earlier (see “Stop criminals misusing legal services”, Law-Talk 824, and “Mitigate risks for business

advantage”, LawTalk 825), the AML/CFT Act has made lawyers’ trust accounts more attrac-tive to criminals laundering their ill-gotten gains, and more di� cult for lawyers to avoid becoming implicated in criminal activity.

Although limited in scope, and described by an international monitoring body as “seriously de� cient”, the AML/CFT Act’s predecessor, the Financial Transactions Reporting Act 1996 (FTRA), is intended in the meantime to provide a basic backstop for lawyers, accountants and real estate agents. Until their temporary exemption from the AML/CFT Act is lifted, the FTRA requires each of those professions to report suspicious transactions.

The fact situation at the core of the Law Society debate – in which a lawyer has actual knowledge of a client’s intention to undertake money laundering activities – reveals that some of the legislation intended to meet New Zealand’s international obligations to detect and deter money laundering has more holes than Swiss cheese.

Lawyers’ ethics plugsleaky legislation

Money laundering legislation requires lawyers to report suspicions – or does it?Even with a fact scenario in which a lawyer knows that a serious criminal money launder-ing transaction is intended, it was quickly acknowledged on both sides of the debate that the FTRA – which supposedly requires lawyers to report suspicious transactions – failed to apply. It emerged that even if the “modern” AML/CFT Act currently applied to lawyers, it too would be ine� ective. For example:• The FTRA requires lawyers only to report

suspicious “transactions” that have been conducted or sought to be conducted. It doesn’t cover the full range of even the most obviously suspicious “activities” proscribed in some other jurisdictions. The debate revealed that New Zealand’s legislation seems mostly content for authori-ties to chase illusory shadows after the event – when the funds may already be lost through a dizzying jaunt through multiple jurisdictions su� cient to dissuade even the most assiduous pursuit – instead of seeking to prevent and deter money laundering (and its underlying associated criminality and multiplicity of victims) at the earliest stage.

• Even if there had been a “transaction” – with the money laundering process well under way, and even with the lawyer’s knowledge of criminality – lawyers are obliged by the FTRA only to report transac-tions conducted or sought to be conducted “through” their businesses. This suggests that a simple house purchase in which funds � ow though a � rm’s trust account will be caught. But multi-million dollar developments – funded by extortion, tax evasion, theft, fraud and drug sales in the local community, perhaps even including some to the lawyers’ own children – may not trigger legislative obligations for legal professionals even to report transactions they know involves underlying criminal-ity and money laundering, if the lawyer “merely” advised. Similarly with account-ants advising on transactions in which tainted funds may not pass through their own businesses. Even with suspicion or actual knowledge of the criminal source of funds, FTRA reporting obligations may not apply. (There is, however, a little known sting in the tail of the legislation, in which anyone who structures a transaction to

By Ron Pol

24 · LawTalk 840 · 28 April 2014

avoid application of the Act commits an o� ence: ss101 and 108, AML/CFT Act.)

• Although client con� dentiality and legal professional privilege are important pillars of the legal profession, lawyers know that neither applies in relation to the commis-sion of crime. Yet provisions within the specialist legislation which seeks to detect the serious crime of money laundering seems curiously to di� er from the usual circumstances in which privilege fails to adhere. It was suggested that for privilege not to apply in some circumstances, it may require a lawyer to know, with certainty, the actual purpose of another person (their client) – each element of which may prove an insurmountable barrier. Under the leg-islation at least, a lawyer may believe – or assert – that con� dentiality and privilege remains even in the face of what seems obvious and almost certain criminality.

• And if a lawyer – with actual knowledge of proscribed criminal activity and a transac-tion conducted through their practice – decides to report a suspicious transaction, if the above arguments are mounted by an aggrieved client, the lawyer may not enjoy the legislative protections that typi-cally accompany the very reports that the legislation purportedly requires of them.

• Curiously, the debate also revealed that even if the more extensive provisions of the AML/CFT Act already applied to lawyers, it too might not have triggered reporting obligations even in the face of a wide range of obvious criminal activities of which lawyers may become aware. This is because, although the FTRA was crafted in a di� er-ent era, many of the historic de� nitions simply carry through into the “modern” AML/CFT Act. This means that gaps in the early stage FTRA have been ampli� ed in a modern era; in which globalisation and instantaneous multi-jurisdictional funds transfer exponentially expand the impact of those gaps in the modern context.

• The de� nition of money laundering itself, in s243 of the Crimes Act, adds further layers

of complexity; and a veritable “pick ‘n mix” of technical defences for any well resourced or sophisticated criminal organisation or drug dealer. For example, complex de� nitions add layers of intent, such as evidence of a purpose to conceal, even beyond overwhelming evidence of predicate criminality and the actual concealment of the resulting property in question.

Lawyers’ ethics to the rescueThe specialist anti-money laundering legisla-tion may be shot through with holes big enough to drive the proverbial 18 wheeler through without touching the sides, but the debate reinforced that some of the gaps might fortuitously be plugged by lawyers’ own rules of conduct.

Consistent with lawyers’ fundamental obligations to uphold the rule of law and administration of justice (s4, Lawyers and Conveyancers Act 2006, and R2, Conduct and Client Care Rules), lawyers:• must not assist any person in an activity

the lawyer knows to be fraudulent or criminal (Rule 2.4);

• must not knowingly assist in the conceal-ment of fraud or crime (Rule 2.4);

• must disclose con� dential information which relates to the anticipated or pro-posed commission of a crime punishable by imprisonment for three years or more [Money laundering attracts imprisonment up to seven years] (Rule 8.2(a)); and

• may disclose con� dential information which relates to the anticipated com-mission of a crime or fraud (Rule 8.4(b)).

It therefore seems in many cases that it may only be lawyers’ ethical obligations which act as an e� ective barrier against the misuse by criminals of lawyers’ trust accounts and services; and that this may also o� er the only real protection for lawyers who choose to report suspicious transactions.

As a lawyer, it is strangely refreshing, yet wearing my anti-money laundering hat it is somewhat disconcerting, that the legal profession appears to constitute a stronger

defence against money laundering and the impact of serious crime not as a result of but in spite of New Zealand’s specialist anti-money laundering legislation.

Accountants and real estate agents out in the cold?If lawyers are comforted by the protections a� orded by their own professional rules notwithstanding gaps in the legislative framework intended to detect and deter money laundering, their accounting and real estate colleagues may not fare so well.

The “seriously de� cient” FTRA reporting requirements also apply to those profes-sions, yet arguably without su� ciently equivalent provisions in their own rules of conduct, accountants and real estate agents may � nd themselves “between a rock and a hard place” when faced with even the most obvious red � ags indicative of money laundering.

This is because, although failure to report suspicious transactions is an o� ence, report-ing genuine suspicions may not always provide protection from breach of contract or con� dentiality claims by aggrieved clients.

However, the debate also revealed that legislative confusion and uncertainty o� ers a veritable wealth of defences for resourceful lawyers to deploy on behalf of any of their col-leagues in any of those professions unlucky enough to become mired in allegations of not meeting their anti-money laundering obligations.

Nonetheless, it may not re� ect well on New Zealand’s reputation on the international stage if legislation intended to detect and deter money laundering instead operates to confuse or dissuade some professionals from reporting genuinely suspicious activities.

Ron Pol, LLB (Hons), BCom (Econ), is a lawyer, consultant, and principal at amlAssurance.com and TeamFactors.com, and is currently undertaking doctoral research on the money laundering vulnerabilities of lawyers, account-ants and real estate agents.

25LawTalk 840 · 28 April 2014 ·

Despite some obstacles, a class action

regime is emerging in New Zealand. This is an important development for individuals’ access to justice and their ability to e� ect social change.

The litigation � led by Feltex investors went to trial in March, investors commenced proceedings in relation to the LDC Finance collapse in 2013 and “Fair Play on Fees” have � led proceedings in relation to penalty fees charged by banks.

There have also been media reports of owners of earthquake damaged homes in Christchurch considering a class action against insurers, investors in the Ross Asset Man-agement Ponzi scheme considering a class action against the IRD, a potential wage

discrimination claim by the Service and Food Workers Union on behalf of 25,000 caregivers and a claim by 80 small businesses for loss su� ered from the grounding of the Rena o� the coast of Tauranga. There are now at least � ve litigation funders operating in New Zealand.

What’s happening elsewhere?Class action litigation has been a signi� cant feature of the legal scene in the United States, dating back to the 1960s. An article on the American Bar Association Website estimates that over 6,000 class actions were � led per year in federal court between 2010 and 2012.1

Class action litigation has � ourished in the United States for a number of reasons, including the possibility of large damages awards by juries, the fact that parties bear their own costs irrespective of outcome, the “opt-out” form of class action under

which all members of the class are bound by the outcome unless they choose to opt out, an established plainti� s’ litigation bar and contingency fees.

The class action phenomenon may also re� ect an aspect of US culture, in which the courts play an important role in social change and, in particular, in striking the balance between powerful corporations and citizens.

Multiple Canadian jurisdictions have adopted class action legislation, most since 1992. It is commonly accepted that class action proceedings are now much more prevalent, with over 100 class action proceedings � led annually.2

The largest class action trial in Canadian history commenced in March 2012, 14 years after the initial plainti� s � led proceedings. It involves Quebec’s 1.8 million smokers and the three biggest cigarette companies. The

Class action litigation: a new frontierBy Liesle Theron

Courtroom PracticeCourtroom PracticeCourtroom PracticeCourtroom PracticeCourtroom Practice

26 · LawTalk 840 · 28 April 2014

trial is ongoing.In Australia class action litigation took

o� when the Federal Court of Australia Act was amended in 1992 to introduce “repre-sentative proceedings”. Victoria and New South Wales adopted the same procedure in 2000 and 2010.

Initially class action litigation focused on product liability and mass torts. But by 2009, shareholder class actions had overtaken these claims as the most common type of class action.

In March 2012, it was reported that an average of 14 class actions were � led each year in the 20 years after the regime was introduced.3 In February Herbert Smith Freehills reported that in the last two years there have been close to AUD$900 million of class action settlements in Australia and that the largest class action funder, Bentham IMF, is on track to achieve a funded litigation portfolio of AUD$2 billion.4

On 7 February 2014 the Victorian Supreme Court signed o� on an AUD$89 million settle-ment of a class action taken by people who su� ered birth defects after their mothers took thalidomide.

Law � rms and litigation funders bringing class actions continue to expand. Australia, where class actions are also conducted on an “opt out” basis, is now seen by some as an even more attractive forum for class action litigation than the US. There is no class certi� cation requirement or requirement that common issues predominate over individual issues in Australia. The Australian rules allow for the determination of sub-group or individual issues as part of a class action.

There are also cautious moves afoot to facilitate this type of litigation in other juris-dictions. For example, the United Kingdom Government introduced a Consumer Rights Bill in January which would create an “opt-out” collective action for competition law claims on behalf of consumers and businesses in the Competition Appeal Tribunal.

On 11 June 2013 the European Commis-sion published a non-binding commission recommendation that within two years member states should adopt collective redress mechanisms at the national level for breaches of EU law rights following a set of basic principles. It recommends an “opt-in” system with any exceptions justi� ed by reasons of administration of justice, contingency fees and punitive damages not be permitted and entities representing claimants be of non-pro� t character.

In Japan a bill was enacted in December 2013 which provides for approved consumer organisations to bring certain class action claims against businesses but damages

for personal injury and death are excluded.

Class action litigation in NZThere are a number of reasons why class actions have been slow to emerge as a feature of the New Zealand landscape.

One is the absence of clear rules for such liti-gation. The Rules Committee released a draft Class Actions Bill and Rules for consultation in 2008. A � nal draft was sent to the Secretary for Justice in 2009. In 2012, in its report on its inquiry into the � nance company failures, the Commerce Committee recommended that the Government give priority to the introduction of a class actions regime. It appears that no further progress has been made.

In New Zealand, however, a group can bring litigation by way of representative action under the High Court Rules. High Court Rule 4.24 provides that one or more persons may sue on behalf of, or for the bene� t of, all persons “with the same interest in the subject matter of a proceeding” either with the consent of the represented parties or with court approval. The courts have permitted plainti� s to use this mechanism to commence class actions.

Another factor in New Zealand has been the absence of personal injury litigation which provided much of the � rst wave of class action litigation in other jurisdictions. Other deter-rents are the continued existence of the torts of maintenance and champerty, restrictions on contingency fees and the very modest level of awards of exemplary or punitive damages. It may also be that New Zealanders simply do not have the same appetite as Americans or Australians for litigation.

Looking to the futureThese factors will have deterred some class actions and hampered others. But it has by no means prevented their emergence. The growth of class action litigation in New Zealand now seems inevitable.

Most of the features responsible for the expansion of this type of litigation in Australia are also present in New Zealand.

The New Zealand courts have shown themselves to be open to class actions, facilitating them as far as possible. There is a relatively low threshold for obtaining a representative order under High Court Rule 4.24, and the courts are prepared to determine common issues using this procedure, leaving individual issues such as causation, reliance and loss to be dealt with at a later stage.

Most of the features that the 2008 draft Class Action Bill had sought to provide are now available under the representative procedure

as it has been developed by the courts, most notably in the Houghton v Saunders litigation which arose out of the collapse of Feltex.5

The presence and expansion of litigation funders suggests that the small New Zealand economy is able to generate su� cient returns to support the funding industry. Their activi-ties can be expected to increase since the Supreme Court clari� ed the rules applying to their involvement, at least in cases other than class actions, in Waterhouse v Contractors Bonding [2013] NZSC 89.

These developments should be embraced. Class action litigation gives individuals access to the courts by pooling a large number of claims which may not be viable on their own, and raises public awareness of important issues. It holds the promise of a more level playing � eld on which powerful defendants can be held to account.

Liesle Theron is a barrister at Thorndon Cham-bers. She has a wide-ranging civil and commercial litigation practice, and advises clients on all aspects of commercial and public law.

1. Robert J. Herrington The Numbers Game: Dukes and Concepcion, 20 November 2012 (available at http://apps.americanbar.org/litigation/committees/classactions/articles/fall2012-1112-numbers-game-dukes-concepcion.html).

2. Sean P. Wajert, Dechert LLP Class Actions in Canada, Bloomberg Law Reports, Class Actions 1(1) (available at www.dechert.com/� les/Publication/18a613b0-35d9-441a-ae9b-b030022c5802/Presentation/PublicationAttachment/62f4d2� -1a87-4c71-92df-b4ba9838aa87/Wajert.pdf); L Millan, Class actions: Their day b4ba9838aa87/Wajert.pdf); L Millan, Class actions: Their day b4ba9838aa87/Wajert.pdfin court, March 2013 (available at www.nationalmagazine.ca/Articles/March_2013/Their_day_in_court.aspx).

3. Australia Has Few Class Actions, Scale of Cases Concern, Mallesons Says, 2 March 2012 (available at www.bloomberg.com/news/2012-03-02/australia-has-few-class-actions-scale-of-cases-concern-mallesons-says.html).

4. Herbert Smith Freehil ls Class act ions 2013/2014 Developments and Trends , February 2014 (avail-able at www.herbertsmithfreehills.com/insights/legal-brie� ngs/class-actions-2013-2014-developments-and-trends).

5. See Saunders v Houghton [2010] 3 NZLR 331 and Credit Suisse Private Equity LLC v Houghton [2014] NZSC 37 in particular.

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27LawTalk 840 · 28 April 2014 ·

Land on Competition LawLand on Competition LawLand on Competition LawLand on Competition LawLand on Competition Law

The Commerce Select Committee

reported back on the Credit Contracts and Financial Services Law Reform Bill on 17 March. The bill is a large one that makes a number of important changes to the Credit Contracts and Consumer Finance Act 2003 (CCCFA). The bill also repeals the Credit (Repossession) Act 1997 and incorporates its provisions into an expanded CCCFA.

One very important part of the bill is that it introduces the concept of responsible lending to New Zealand credit legislation for the � rst time. This is done by the addition of a new Part 1A of the CCCFA.

The new Lender Responsibility Prin-ciples will be very important to the application of the CCCFA. They impose onerous duties on lenders which will inevi-tably require some significant changes in processes and practices.

They are expressed in quite general terms which do not provide much guidance to lend-ers of what is expected from them. Helpfully, however, the Select Committee has proposed amending the bill so that the new Lender Responsibility Principles do not come into e� ect until the same time as the Minister issues a proposed Responsible Lending Code.

A new outline provision suggested by the Select Committee explains the relevance of the Lender Responsibility Principles and when they apply.1 This provision records that the CCCFA provides for:• the court to make compensation and other

orders, or to grant an injunction, in respect of a breach of the Lender Responsibility Principles;

• creditors to make decisions on hard-ship applications in compliance with the principles;

• creditors to comply with the principles in relation to a repossession of consumer goods;

Introduction of principles of responsible lending

• the court to order persons not to act as creditors if they have failed, more than once, to comply with the principles; and

• the court to have regard to compliance with the principles when deciding whether to reopen an agreement under Part 5 of the CCCFA (which allows the reopening of oppressive credit contracts).

The Lender Responsibility Principles will be set out in a new s9B of the CCCFA.

The � rst important principle is a duty of care. Section 9B(2)(a) provides for a lender to exercise the care, diligence and skill of a responsible lender. The precise nature of this duty of care is not outlined.

Is this a duty owed to borrowers to take care to avoid loss to them? The section simply notes that the duty of care will apply to lenders’ conduct in advertising the provision of credit, in pre-contractual dealings leading up to an agreement to provide credit, and to all subsequent dealings with a borrower in relation to an agreement.

The standard of care expected of a responsible lender is also not elaborated. Hopefully further guidance as to what is expected will be provided for in the proposed Responsible Lending Code. In the absence of such guidance the obligations expected of lenders in relation to the duty of care are uncertain.

The second important principle requires lenders to satisfy themselves as to the ability of the borrower to repay. Section 9B(3)(a) provides that a lender must make reasonable enquiries before entering into an agreement with a borrower so as to be satis� ed that it is likely that the credit or � nance provided in the agreement will meet the borrower’s requirements and objectives, and the borrower will make the payments under the agreement without su� ering substantial hardship.

This provision amounts to a shift of responsibility for borrowing from the bor-rower to the lender.

To date it has been up to the borrower to decide, having regard to his or her own knowledge of his or her own financial circumstances, that he or she can make repayments under the agreement without su� ering hardship.

The new s9B(3)(a) is controversial. Some lenders have argued that while borrowers should be protected from oppressive prac-tices, an appropriate policy setting should encourage individuals to take personal

By John Land

28 · LawTalk 840 · 28 April 2014

responsibility for budget setting and compli-ance with personal � nancial obligations.

A further risk is that the provision results in a limiting of the availability of credit or in the cost of credit being increased. The amendment will likely discourage prudent lenders from providing credit to any customer who doesn’t clearly fall within the standard lending criteria.

Providing credit to such customers will be risky as there is a chance that the lender may subsequently face the allegation that it has breached the lender responsibility principle in s9B(3)(a). Alternatively, the cost of credit for all consumers may rise as lenders build in a further margin to re� ect the greater risk involved in lending to customers who only just fall within standard lending criteria.

A third principle requires the lender to assist a borrower to reach an informed deci-sion whether to enter into a credit agreement. As part of this principle, s9B(3)(b) includes a requirement for the lender to ensure that the terms of a credit agreement are expressed in plain language and in a clear, concise and intelligible man-ner. It can be di� cult on the one hand to be clear, precise and accurate while on the other hand also being concise.

A fourth principle requires a lender to treat a borrower and their property (or property in the possession of the borrower) reasonably and in an ethical manner. This obligation is set out in s9B(3)(e) and speci� cally applies when breaches of the agreement occur, where a debtor su� ers unforeseen hardship or during the process of repossession of goods.

The obligations of reasonableness and of ethical conduct are quite general. Again it will be useful for the standards expected to be clari� ed in the Responsible Lending Code.

A � fth principle requires a lender to avoid oppressive conduct. Section 9B(3)(f) requires a lender to ensure that the agreement is not oppressive, that the lender does not exercise a right or power in an oppressive manner and that the lender does not induce the borrower to enter into the agreement by oppressive means.

Similar lender responsibilities to those discussed above are owed to guarantors in relation to guarantees in ss9B(2) and 9B(3A). Further there are obligations owed to borrowers in relation to credit related insurance contracts in s9B(3B).

Section 9E provides for the Minister of Consumer A� airs to prepare and issue a Responsible Lending Code. The purpose of the code is to elaborate on the Lender Responsibility Principles under the Act.

The Select Committee has added a provi-sion to the e� ect that the code is not binding.2

However, evidence of a lender’s compliance with the provisions of the Responsible Lending Code will be treated as evidence of compliance with the Lender Responsibility Principles.3

Section 9D provides some guidance as to the content that may be included in the code. For example, the code may set out the nature

and extent of enquiries that a lender should make before entering into an agreement. It will be par-ticularly interesting to see the extent of questions that are considered appro-priate for a lender to ask so as to satisfy itself that a borrower will be able to meet its obligations under a proposed agree-ment without su� ering “substantial hardship”.

Section 9D also notes that the code may set out processes, practices or procedures that a lender should follow to ensure that the lender treats borrowers and their property reasonably and in an ethical manner. There is certainly scope for di� erences of view as to what processes, practices or procedures would be appropriate in this context.

Section 9D also notes the code may include processes, practices or procedures that a lender should follow to ensure that fees (including credit fees and default fees) are not unreasonable. One of the other reforms made by the bill is to signi� cantly amend the provisions in the CCCFA dealing with when credit fees and default fees are unreason-able.4 The bill inserts a new s44B of the CCCFA which will provide that evidence of a creditor’s compliance with the provisions of the Responsible Lending Code is to be treated as evidence that a credit fee or default fee is not unreasonable.

The Select Committee recommended amending the bill to stagger the com-mencement of the bill’s provisions. The intention is to allow time for development of the Responsible Lending Code and for the necessary changes to be implemented in the credit industry.

The bill does provide that all of its provi-sions must come into force within 12 months,5

and the Commerce Minister must ensure that the Responsible Lending Code comes

into force within the same time period.6

The proposed staggering of the bill’s introduction is a helpful change. The bill, as originally introduced, only provided for the Responsible Lending Code to be published within two years after the Lender Responsibility Principles came into e� ect.7

That was undesirable. As is apparent from the discussion above, the Lender Responsibility Principles are general and uncertain in scope. It makes sense for them to only come into e� ect at the same as the Responsible Lending Code.

The code will hopefully provide lenders with helpful guidance on what is expected of them. The introduction of the Lender Responsibility Principles are likely to cause lenders considerable work in changing pro-cedures and practices and that work should be informed by the terms of the code.

John Land is a senior competition law specialist and commercial litigation barrister at Bankside Chambers in Auckland. He was formerly a partner of Kensington Swan for 20 years. He can be contacted on (09) 379 1513 or at [email protected].

1. New s9AA CCCFA.2. New s9C(1A) CCCFA.3. New s9C(2) CCCFA.4. Sections 41, 43 and 44 of the CCCFA are replaced and new

ss44A and 44B are inserted.5. Clause 2(3) Credit Contracts and Financial Services Law

Reform Bill 2013.6. Clause 1A of proposed new Schedule 1AA to CCCFA.7. Section 9E(1) of Credit Contracts and Financial Services Law

Reform Bill 2013 as originally introduced.

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29LawTalk 840 · 28 April 2014 ·

CPDcalendarProgramme Presenters Content Where When

CIVIL LItIgatIon & EmPLoymEntIntroduction to High Court Civil Litigation Skills

Sandra GrantJohn HardieJudge Joyce QCNikki PenderPaul RadichTom Weston QC

This two-day workshop is an excellent opportunity for recently admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. Don’t miss this chance to ensure that you will be able to face a court case with confidence! You will improve your advocacy skills while you learn how to handle a single file from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this, and a range of other litigation files, competently and confidently.

Auckland 1WellingtonAuckland 2 Christchurch

26 - 27 May20 - 21 Oct10 - 11 Nov24 - 25 Nov

Health and Safety Reforms

Dr Kathleen CallaghanSimon MitchellPenny Swarbrick

The new Health & Safety Reform Bill will replace the current Act, bringing in the most significant reforms in 20 years and, with WorkSafe, there is now a new and very different agency practitioners will need to understand and work with. This seminar will aim to provide a heightened awareness of the new Act, its wide ranging implications and its significantly increased penalty regime.

DunedinChristchurchWellingtonHamilton Auckland

3 Jun4 Jun10 Jun11 Jun12 Jun10 Jun

Using Human Rights Law in Litigation

Chair:Prof Paul Rishworth

It is becoming increasingly important to know how Human Rights can properly be used to influence the outcome of a case. This intensive will provide practical advice and guidance that will help the litigator to know when to play the Human Rights card and how to do so to best effect.

Wellington 25 Jun

Expert Witness Susan Hughes QC This two-day day programme follows the same learning-by-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. It is entirely focussed on working with expert witnesses and you will also receive mentoring from experienced faculty members. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.

Wellington 26 - 27 Jun

Issues in Unjust Enrichment

Chair:Prof Peter Watts QC

Bringing you up to date with developments both here and abroad, this intensive takes stock of the law of restitution in New Zealand. Presenters will discuss key issues in unjust enrichment, how it affects obligations in contractual arrangements, including mistaken transfer, defences and restitution for wrongs.

WellingtonAuckland

23 Jul24 Jul

Litigation Skills Programme

Director:David Clark

This highly regarded residential week-long advocacy training course is open to applicants with at least two years’ litigation experience. Selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. It’s hard work, great fun and most participants say it’s the most effective value-for-money course they’ve ever attended! applications close Friday 6 June 2014

Christchurch 24 - 30 Aug

ComPany, CommERCIaL & taxIntroduction to Company Law

John HornerBen JohnstonAndrew LeeteMark OdlinGraeme SwitzerDaniel Wong

This practical “transaction” based two-day workshop will equip you with the knowledge and understanding to deal with the purchase, establishment, operation and sale of a business.

AucklandWellingtonChristchurch

12 - 13 May19 - 20 May26 - 27 May

CRImInaLDuty Lawyer training Programme

Local Presenters Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is made up of several parts. Visit www.lawyerseducation.co.nz for full course description, dates and locations.

Visiting centres around NZ

Feb - Nov

EnVIRonmEntaL LaWUpdate on Environmental Case Law

Vernon Rive This webinar will examine a number of recent, significant cases in the environmental field. It will also consider the key themes that are emerging from the case law in this area and reflect on what this means for practitioners on a practical basis.

23 May

FamILymediation for Lawyers: Part B – Family Law

Virginia GoldblattDenise Evans

For those with recent approved prior mediation training, including our Part A course. This programme will be an opportunity to practise mediation skills in the family law area and then to be assessed on them. Strictly limited numbers with pre-course work required.

Auckland 1Wellington 2Auckland 2

2 - 4 May22 - 24 Aug10 - 12 Oct

9CPD HRS

3.5*CPD HRS

6CPD HRS

13.5CPD HRS

55CPD HRS

11*CPD HRS

15CPD HRS

13CPD HRS

Webinar

5.5CPD HRS

1CPD HRS

Webinar

Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz

Online registration and payment can be made at www.lawyerseducation.co.nz

Programme Presenters Content Where WhenFamILy

Understanding mediation – mediation for lawyers Part a

Virginia GoldblattGeoff Sharp

Mediation knowledge and skills are an increasingly important adjunct to legal practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can offer the public.

WellingtonAuckland 2

25 - 27 Jul31 Oct - 2 Nov

PRoPERty & tRUStSProperty Law Conference

Chair:John Greenwood

The ever-changing pace of property law places new demands on practioners. We recommend you attend this year’s conference and take the opportunity to indulge yourself by up-skilling your knowledge. The programme will provide you with two days of stimulating engagement on topics of importance and interest concerning property law. Areas for discussion include: leases, ethics, developer’s expectations, property relationship agreements, health and safety reforms, unit titles, insurance, dispute resolution and much more.

Wellington 23 - 24 Jun

Residential Property transactions

Debra DorringtonSimon EllisLauchie GriffinNick KerneyDuncan Terris

This very popular two-day, limited-number workshop, for solicitors at the start of their property law career and legal executives with some experience, follows three files, from client instructions to settlement and beyond.

ChristchurchWellingtonHamiltonAuckland

30 Jun - 1 Jul28 - 29 Jul28 - 29 Jul11 - 12 Aug

Elder Law Intensive

Chair: Catherine Atchison

Attend this intensive to be updated on the constantly evolving issues in elder law. The presenters will discuss: capacity; enduring powers of attorney; elder abuse; privacy; trusts; new relationships; and they will look at future housing options for an ever-increasing and diverse elderly population.

ChristchurchWellingtonAuckland

7 May14 May21 May

PRaCtICE & PRoFESSIonaL SkILLSStepping Up – foundation for practising on own account

Director: John Mackintosh

All lawyers wishing to practise on their own account, whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete this course. (Note: From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up). Developed with the support of the New Zealand Law Foundation.

ChristchurchAuckland 2WellingtonAuckland 3

15 - 17 May3 - 5 Jul4 - 6 Sep6 - 8 Nov

Lawyer as negotiator

Jane Chart Building on your own experience, this one-and-a-half day workshop provides hands-on practice and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. It examines different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.

Auckland 1Wellington 1Wellington 2Auckland 2

7 - 8 May20 - 21 May11 - 12 Nov18 - 19 Nov

trust account Supervisor training Programme

Jeremy KennerleyDavid LittlefairDavid ChapmanBob EadesLindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments.

HamiltonWellingtonAuckland 2Christchurch

16 Jul18 Sep19 Nov26 Nov

Secrets of Success

Irene Joyce Understand the factors which make small to medium size firms successful, analyse how well your firm measures up and how to start implementing changes to improve your firm’s success.

DunedinChristchurchWellingtonHamiltonAuckland

30 Apr1 May14 May29 May5 Jun

Financial markets Conduct act – an introduction

Liam MasonJeremy MuirMark Stuart

Join this practical and interactive seminar designed to provide a conversion course from the old Securities Act (and related legislation) to the new, radically different and all-encompassing Act. You will learn the concepts behind the new Act, understand the timetable for implementation, and recognise when the Act applies. For all general practitioners.

DunedinChristchurchWellingtonAuckland

9 Jun10 Jun17 Jun18 Jun17 Jun

In SHoRt SEmInaR SERIES – aUCkLanDEstate and trust planning for the 21st century family

Barry Stafford Penelope Stevenson

Lawyers dealing with contemporary family issues need to work creatively with the current legislation, as family structures have changed significantly in the last few decades. This seminar will assist you to tailor asset planning and wills with your clients’ unique circumstances in mind.

Auckland 13 May

*CPD HRS may vary – please see brochure on website

14.5CPD HRS

12.5CPD HRS

6CPD HRS

18.5CPD HRS

11.5CPD HRS

10*CPD HRS

3.5*CPD HRS

3.5*CPD HRS

2CPD HRS

Webinar

13CPD HRS

Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email [email protected] or contact CLE information, tel 0800 333 111.

Financial Market LawFinancial Market LawFinancial Market LawFinancial Market LawFinancial Market Law

2014 marks the start of a new era for

New Zealand’s � nancial markets – an ambi-tious and exciting period of change for market participants and for investors. This is the � fth article in a series outlining the key changes, the impact they will have on the future of our � nancial markets, and the role lawyers can play in helping achieve that change. In this article we discuss new ways of raising capital in the future regime.

New regulatory frameworkA key objective of the Financial Markets Conduct Act 2013 (FMC Act) is to create a more � exible regulatory framework for � nancial product markets in New Zealand.

Until now, some New Zealand companies have been dissuaded from public listing by the perceived cost and regulatory burden of listing on a regulated market. To address this, the FMC Act caters for a diverse range of � nancial product markets, taking into account the di� ering needs and objectives of issuers and investors.

The new � nancial product market regime comes into force on 1 December 2014. The changes being introduced by the new regime have the potential to:• facilitate the creation of growth markets

that form a bridge for small and medium sized business to move from being pri-vately held companies through to being listed on the NZSX;

• assist in creating a fuller range of products for investors to invest in; and

• assist in raising levels of investor con-� dence in capital markets, through the approval and oversight of markets with an e� ective and proportionate regulatory framework.

Exemptions and alternative marketsAs part of its flexible and facilitative approach, the FMC Act introduces a number of exemptions from the requirement for a � nancial product market to be licensed. This includes exemptions:• for small markets, where:

New ways of raising capitalBy Garth Stanish • the number of relevant transactions

on the market does not exceed 100 transactions; or

• the aggregate value of the � nancial products acquired under the relevant transactions on the market is less than $2 million;

• for prescribed wholesale markets, where the investor pool is limited to wholesale investors (there are currently no prescribed wholesale markets);

• for other prescribed markets, where, on application to the Commerce Minister, it can be shown that the cost of regulation outweighs the bene� ts and the principles of the FMC Act continue to be met; and

• for providers of crowd funding and peer-to-peer lending services whose services are provided under a market services licence.

The FMC Act also allows the requirements for a particular licensed market or class of licensed market to be modi� ed. Under this “alterative market” regime, disclosure requirements and conduct rules can be adapted to the particular market, issuers and investors involved.

The ability to tailor market requirements may also be bene� cial for markets where only certain types of products are traded, such as derivatives. This approach illustrates the � exible nature of the new regime by trying to ensure that compliance costs for operators, issuers and participants are proportionate to the characteristics of the particular market.

FMA’s approach to new marketsGiven the � exibility in the regulatory regime, the Financial Markets Authority (FMA) and the Ministry of Business Innovation and Employment (MBIE) will be discussing potential new markets directly with potential operators and users of those markets.

FMA must ensure that those seeking to use the new regime, be it as a market operator, a company wanting to list on a growth market, or as an investor in a company on a new market understand the scope and limits of the regime. While FMA will be � exible, there are certain regulatory benchmarks that any licensed market must meet and which FMA cannot exempt. In

other words, � exibility and growth must take place within an appropriate regulatory environment.

Peer-to-peer lending and crowd fundingIn addition to the � nancial products markets outlined above, peer-to-peer lending and crowd funding facilities will open up new investment channels for businesses who want to raise capital in New Zealand.

Since 1 April 2014 FMA has been able to issue licences to providers of crowd funding and peer-to-peer lending services. These providers will act as intermediaries between companies making o� ers of shares to inves-tors (crowd funding) and between borrowers making o� ers of debt securities to lenders (peer-to-peer lending).

Companies o� ering shares, and borrowers o� ering debt securities through these facili-ties are not required to supply investors or borrowers with an investment statement/prospectus (prior to 1 December 2014) or a product disclosure statement (from 1 Decem-ber), although the facility will require that some minimum disclosure is made. Subject to any limitations introduced by facilities, a company could potentially raise up to $2 million of equity and debt capital through such o� ers in any 12-month period.

To obtain a market services licence an applicant must meet the requirements set out in the FMC Act and the Phase 1 Regulations 2014, including minimum standards published by FMA. Information about how to apply for a licence and the details of the minimum standards can be found at www.fma.govt.nz/help-me-comply/new-licences-for-� nancial-market-services/.

Issuers and borrowers making o� ers through such facilities are not exempted from other obligations at law, for example the obligation to not engage in misleading or deceptive conduct (Part 2 of the FMC Act) and the obligation to maintain a register of � nancial products (Part 4 of the FMC Act).

More informationKeep an eye on our website for more details www.fma.govt.nz or sign up to our engagement site www.talktous.fma.govt.nz to receive regular updates.

Garth Stanish is the FMA’s manager, market infrastructure and oversights providers.

32 · LawTalk 840 · 28 April 2014

Murray Ian Withers’s appeal against

strike o� has been dismissed by Justices Panckhurst and Mander in the High Court [2014] NZHC 611.

Mr Withers was struck o� by the New Zea-land Lawyers and Conveyancers Disciplinary Tribunal in July 2013 [2013] NZLCDT 39 (see LawTalk 835, 14 February 2014). In summary, the tribunal found that Mr Withers:• had deliberately failed to perform an

undertaking he had given, and had not taken any timely steps to remedy his failure when pressed on the matter by

the recipient of the undertaking;• had acted for more than one party in

the same transaction without the prior informed consent of all parties, and without disclosing an interest he had in the transac-tion concerned and how that a� ected his ability to give independent advice; and

• had remained engaged and advised on some further matters arising from the transaction referred to in b (above), notwithstanding his inability to provide independent advice on such further matters.

There were three aspects to the appellant’s

appeal against penalty, Justices Panckhurst and Mander noted.

“The � rst was that a suspension from practice, coupled with requirements that Mr Withers undertake rehabilitative steps, was the appropriate sanction. Counsel also submitted that the tribunal gave undue weight to Mr Withers’ disciplinary history, and insu� cient weight to some positive personal factors.”

Mr Withers’ conduct comprised an “egre-gious breach” of the � duciary obligations

Lawyers Complaints ServiceLawyers Complaints ServiceLawyers Complaints ServiceLawyers Complaints ServiceLawyers Complaints Service

Murray Withers loses strike off appeal

In 2012 a lawyers standards committee

made a � nding of unsatisfactory conduct against E, a lawyer who was a consultant with a law � rm, who charged for his time in responding to a complaint to the Law Society. The Legal Complaints Review O� cer (LCRO) in LCRO 182/2012 reversed this decision, although the costs order remained in place.

E was a co-trustee for a deceased estate. After the estate had been distributed, the bene� ciary of the estate complained that the distribution had taken too long, and that E had not communicated with him adequately.

E responded to the complaint by setting out in detail the correspondence that had been entered into and the time that had been taken for each step in � nalising the distribution of the estate. The estate was then billed for E’s time in responding to the complaint. The complainant raised this matter with E and E sought the guidance of the standards committee.

The committee referred E to the decision of the LCRO in Shrewsbury v Rothesay LCRO 99/2009. In that decision, the LCRO had indicated that it was not appropriate for a lawyer to charge a client for attendances in dealing with such a complaint. When E received this information, he reversed the charge made for responding to the complaint.

After conducting its investigation, the

standards committee determined that there was no unsatisfactory conduct regarding the timing and manner of the distribution of the estate.

However the committee found that E should not have charged for his time in responding to the complaint, and that this constituted unsatisfactory conduct. In the circumstances the standards committee did not impose a � ne but ordered that E pay costs of $500.

E sought a review of the determination by the LCRO. E submitted that he had not been aware of Shrewsbury. He also noted that when the invoice was queried, it was agreed with the complainant that the advice of the standards committee should be sought, and upon receipt of that advice, the invoice had been reversed immediately.

E noted that he was, initially, following the advice of his employer, and that it was the � rm which had charged the fee and reversed it, and not him.

The complainant indicated that he accepted these points, and had no objection to the decision of the standards committee being reversed.

The LCRO’s discussion of the issues traversed the purposes of the complaints process, which is to protect consumers, and also to ensure lawyers adhere to their

Unsatisfactory conduct finding reversed by LCRO

professional obligations, thereby maintaining con� dence in the legal profession.

Where a complaint is a consumer com-plaint, the LCRO said, “the purposes of the [Lawyers and Conveyancers] Act [2006] will generally be met if the issue can be resolved in a way which is fair and also acceptable to the client without the need for an adverse decision by a standards committee”.

The LCRO referred to the approach com-monly taken by standards committees in costs assessment cases, in which no further action is taken when the lawyer adjusts the disputed invoice in accordance with the cost assessment.

The LCRO noted this is a pragmatic way to resolve disputes when there is no suggestion of gross overcharging.

The LCRO, however, said that “where there are serious questions about the conduct of the lawyer, it is unlikely that it will be appropriate for a standards committee to take no action on the complaint”.

The LCRO agreed with the submissions E had made about his conduct, and that there was no suggestion of dishonesty or lack of good faith. Taking all the factors into account, the LCRO decided that a � nding of unsatisfactory conduct against E was unwarranted.

Despite this, the LCRO said that the inquiry by the standards committee was wholly appropriate. As a result, the LCRO did not alter the order for costs. The LCRO did, however, comment that the costs order may be something E’s employers might consider was their responsibility in the circumstances.

Continued on following page ...

33LawTalk 840 · 28 April 2014 ·

A lawyer, D, has been censured and

� ned for acting for a client, A, in respect of allegations made by A’s daughter at the same time as D was also acting for another client, B, who was alleged to have committed sexual o� ences against the daughter.

A complained, and a lawyers standards committee has determined that there was

a clear con� ict of interest which D should have been careful to avoid.

When A’s daughter alleged that A had assaulted her, he instructed D to act for him in relation to the resulting care and protection proceedings.

At about the same time D had received legally aided instructions to act for B, who

Conflict of interest was a breach of the Rules

owed to his clients, the judgment said.“A solicitor is subject to � duciary duties to

act in the best interests of his clients; and to act with fairness and openness. Fundamental obligations of the relationship are that the solicitor must not have a personal interest in the transaction, act for two parties in the same transaction without informed consent or fail to disclose information which materially relates to the client’s a� airs.

“Here, Mr Withers breached each of these obligations.”

His personal interest was not disclosed in a fair and open manner. Email replies sent to one party, in which he referred to suing a person involved with the other party, “put the exist-ence of a deliberate deception beyond doubt. This was the antithesis of what was required on the part of a solicitor,” the judgment said.

The � nding of a deliberate deception led naturally to acceptance of the � rst party’s evidence that she was not advised to obtain independent legal advice. The fact that Mr Withers had successfully concealed his interest meant an explanation of the need to obtain independent advice would have made no sense.

“In any event, as the tribunal found, the transactional situation quickly became such that even with informed consent Mr Withers could not justify acting for both parties. Mr Withers’ position became and remained untenable.

“Yet, for over two years Mr Withers contin-ued to act for both parties in a deteriorating

situation. It was not until early 2010 that vendor clients learned of the true position, and received independent advice. Even then there was signi� cant delay before liability to pay the outstanding portion of the purchase price was admitted and payment made.

“This is a particular aggravating feature of the misconduct. It persisted over a long period. There were twists and turns, time for re� ection and time to seek advice – had there been an inclination to do so. We see this as highly relevant to the penalty decision.”

The breach of the undertaking was also serious misconduct. However the judgment said the court di� ered from the assessment reached by the tribunal in that it doubted that the failure to honour the undertaking given to the Christchurch City Council was deliberate.

“The probability is that the � nancial cir-cumstances in which [a company of which Mr Withers was a director and shareholder] found itself a short time later gave rise to the breach.

“Here, the breach was aggravated by Mr Withers’ failure to contact the [Christchurch City] Council when payment fell due, and also by the subsequent prevarication and delay. In commerce it is essential that people can have total con� dence in the worth of solicitors’ undertakings. Any failure erodes that con� dence, and is detrimental to the legal profession as a whole.

“Viewed in the round, the seriousness of the misconduct is decisive,” the judgment said.

“The tribunal considered that the likely success of the rehabilitative proposals hinged on Mr Withers’ willingness to seek and accept the advice of others. It was not satis� ed he would do this and concluded that protection of the public interest required that an order for striking o� be made.

“We are driven to a similar conclusion. Mr Withers’ disciplinary history and this further misconduct re� ect a lack of integrity and judg[e]ment. These are essential qualities of any practitioner. The point has been reached where protection must prevail at the expense of the possibility of rehabilitation.

“We do not accept that Mr Withers’ disci-plinary history was accorded undue weight. He is a mature practitioner and has been in practice for 38 years. His disciplinary record is of signi� cant concern, particularly the previous breaches of an undertaking and an instruction in favour of a familial interest. This history, when added to the serious misconduct, rendered the outcome inevitable.

“Nor do we accept that the tribunal’s passing reference to the professional and community support received by Mr With-ers means that these aspects were given insu� cient weight.

“Regrettably, in some cases misconduct will trump positive personal considerations, particularly where the misconduct is of a nature to indicate a � aw of character. Sadly, that was the situation in this instance,” Justices Panckhurst and Mander said.

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was charged with sexual o� ences against A’s daughter.

A discovered that D was acting for B when he saw her at B’s sentencing hearing. He complained to the Law Society about the con� ict of interest, and also that D had overcharged him and had not acted in a timely or e� ective manner while acting for him.

The standards committee said its primary concern was in relation to the allegations about con� ict of interest.

D canvassed this issue only brie� y in her response to the committee, but she did say that she believed A had known about her instructions. A claimed, however, that he had known nothing about D acting for B until he saw her in court at the sentencing.

The standards committee said there was a clear con� ict of interest. It was reasonable to assume, the committee said, that there was a “real possibility” D could have held

34 · LawTalk 840 · 28 April 2014

A L I S O N H I L D A B I R K H E A DWould any lawyer holding a will for the above-named, late of Wanganui, formerly of Lower Hutt, retired, who died on 30 March 2014 at Wanganui, please contact Carolyn Wilson. Malcolm Mounsey

Clarke - Lawyers:[email protected] 07 377 8464 | Fax 07 377 8466PO Box 516, Taupo 3351 | DX KP37071

D A V I D J A M E S H A R T L E YWould any lawyer holding a will for the above-named, late of Feilding, sickness bene� ciary, who died on or about 29 September 2013 at Feilding, please contact David Walker, Barltrop Graham:[email protected] 06 323 4034 | Fax 06 323 8757PO Box 88, Feilding 4740

I N D E R J I T S I N G HWould any lawyer in the Auckland region holding a will for the above-named, late of 417 Great South Road, Papakura, Auckland, who died on 9 February 2014, please contact Ilsaad Razak, West City

Law Limited:[email protected] 09 838 6353 | Fax 09 838 6350PO Box 21176, Henderson, Auckland 0650

T E P U A W A I T A N G A B L O S S O M R A M K E AWould any lawyer holding a will for the above-named nee Heteraki, late of 59 Kitemoana Street, Orakei, Auckland, born on 22 December 1933, who died on 1 October 2013 aged 79 years , please contact Jane

Goulding, Daniel Overton & Goulding:[email protected] 09 622 2222 | Fax 09 622 2555 | DX EP71005PO Box 13017, Onehunga, Auckland 1643

L O I S L I L L I A N K A R A I T I A N AWould any lawyer holding a will for the above-named, late of 141 Miranda Steet, Stratford, Taranaki, born on 20 November 1941, who died on 10 August 2013 at Christchurch, please contact Andrew Laurenson,

Govett Quilliam:[email protected] 06 768 3711 | Fax 06 768 3701 | DX NP90056Private Bag 2013, New Plymouth 4342

REGISTRY

LISA ATTRILL, REGISTRY MANAGER

[email protected]��04 463 2916��0800 22 30 30,��04 463 2989

Abdale-Weir Gabriel RobertAbraham-Beermann Eliah GabrielBurghout Hanna BjanaChin Lily Li-WenCorcoran James Simon Davies Jessica Driver Katherine MaryEspie Alastair WilliamGill Ione Grace WillimentHutton Jack StuartKasoulides-Paulson Stella Averil ChristinaLodge Renata ElizaMiles Samuel CasparMitchell Megan Joan MiroMore Rosamund Neale Jade DavidNewton Oliver RobertWhitehouse Samuel Thomas

ADMISSIONUnder Part 3 of the Lawyers and Conveyancers Act 2006

APPROVAL TO PRACTISE ON OWN ACCOUNTUnder s30 of the Lawyers and Conveyancers Act 2006

Dalzell Stuart Kerry EdwinElvidge Robert Forman Mark Edward Hika WharetakaKemps Michael Peter Kincade Julie-Anne Loversidge, Robyn JaneSchmidt-McCleave Rachael ElizabethSingh Raj Pardeep Strang Blair Anthony Vujnovich Antoinette Teresa Wilkinson Kate Kimberley

Comments concerning the suitability of any of the above-named applicants for the certifi cate or approval being sought should be made in writing to me by 1 May 2014. Any submissions should be given on the understanding that they may be disclosed to the candidate.The Registry is now advertising names of candidates for certifi cates of character, practising certifi cates and approvals to practise on own account on the NZLS website at www.lawsociety.org.nz/for-lawyers/law-society-registry/applications-for-approval.

information in respect of one client which might be of signi� cant interest to the other.

This was, the committee said, a “clear breach” of Rules 6 and 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 6 requires a lawyer to protect and promote the interests of the client, within the rules and the law, to the exclusion of the interests of third parties.

Rule 6.1 provides that a lawyer must not act for more than one client on a matter in any circumstances “where there is more than a negligible risk” that the lawyer may be unable to discharge the obligations owed to one or more of the clients.

The standards committee noted that the appearance of independence was also important. The committee said A was justi� ed

W I L L S

in his concerns about D properly representing his interests when she was also acting for a person who had committed o� ences against his daughter.

D was unable to produce a � le note show-ing she had advised A that she was also acting for B. The standards committee said that in any con� ict of interest situation, a prudent lawyer would make a � le note or record the issue in correspondence, with both clients.

B had not complained, but the standards committee said it was as concerned about the independence of the advice B had received as it was about the advice to A.

D said that B had pleaded guilty to the charges early on, and thus D’s primary role was concerned with B’s sentencing for the charges against A’s daughter. The standards committee’s investigation revealed, however, that D had been instructed to act for B before his plea, and that there had been some preliminary matters which had had to be dealt with before he pleaded guilty.

Given the clear con� ict of interest and established breach of the rules, the standards committee did not consider it was necessary to consider the other grounds of complaint.

The committee found that D’s conduct was unsatisfactory. As well as the censure and a $500 � ne, the committee ordered D

to apologise, to refund the fees paid by the complainant and pay $500 costs to the Law Society. D was also required to attend the next ethics course that dealt with con� ict of interest issues.

Women lawyers’ conferenceThe 6th World Women Lawyers’ Conference will be held in Paris on 8 and 9 May. The event will bring together some of the world’s lead-ing practitioners to participate in sessions on recent legal topics. It o� ers attendees an opportunity to network and exchange experience. The 6th Outstanding Woman Lawyer of the Year Award will also be granted during the event. See www.ibanet.org/Conferences/conferences_home.aspx.

Insolvency and restructuringThe 20th Annual Global Insolvency and Restructuring Conference will be held in Barcelona from 18 to 20 May. This conference is presented by the IBA Insolvency Section, supported by the IBA European Regional Forum. See www.ibanet.org/Conferences/conferences_home.aspx.

Coming Up...

35LawTalk 840 · 28 April 2014 ·

• Work for an organisation that is fundamental to “NZ Inc”

• Wellington based in-house opportunity

Landcorp Farming, a State Owned Enterprise,is a leading New Zealand agribusiness. Itsextensive sheep and beef, deer and dairyoperations are best practice. Landcorpstrives for continuous improvement in theproductivity, profitability and sustainabilityof farming, for the benefit of its shareholders,and for New Zealanders.

Landcorp are about to embark on a newphase in its journey. Armed with a newand ambitious strategy, the newly invigoratedExecutive Group wishes to appoint a GeneralCounsel to work with the team in ‘restoringagriculture to its rightful place’ in the NewZealand economy. The successful candidatewill be well known to the legal profession asa senior lawyer who brings with them a levelof integrity, professionalism and enthusiasmthat is essential in order to operatesuccessfully in this particular team.

You are a strategic, conceptual, commerciallysavvy, senior lawyer who is excited at the

prospect of working in an organisation whogenuinely wants to make its mark on theNew Zealand economy. Reporting to theChief Financial Officer, you are responsiblefor ensuring that Landcorp meets itsstatutory and corporate/commercialobligations. Exercising good judgement, youwill provide sound, high quality legal adviceto the Board, Chief Executive, ExecutiveGroup and right across the business. You willfully understand your role in contributing tothe profitability of the business. In addition,an understanding of Landcorp’s statutoryobligations as an SOE is vital.

This is a very broad role encompassing arange of legal, commercial, strategic, and riskmanagement responsibilities. You are ableto apply your legal expertise in an in-housecontext and find workable solutions toproblems. You are an experienced

negotiator capable of delivering positiveoutcomes. You are responsive, practicaland outcomes focused.

Suitable candidates will demonstrateat least 8 - 10 years of legal experience,acquired from a major law firm and/orin-house legal environment. Yourexperience in a range of areas, includingcommercial, corporate, M&A and jointventure law will be utilised to its fullestextent.

This is an opportunity too good to miss!Please call Frieda on 04 894 8536 and/orsend a copy of your CV (Word version)and your official academic transcript [email protected] In the subjectheading, insert the reference LAN001.Applications close on Friday, 2 May 2014 at 9 am.

GENERAL COUNSEL

Friendly and collegial atmosphere in character building with modern fit-out,

close to the High and District Courts.

Accounting and secretarial services available. Flexible terms.

Please contact Bill Manning: (09) 379 9780

[email protected]

Spacious Rooms Available in Established Barristers’ Chambers

J O H N F A R R A R S M I T HWould any lawyer holding a will for the above-named, father to Roshahn

Noeline Smith, who died on 12 June 2013 please contact her. [email protected] | Ph 021 033 1832 24A Stoke Street, Newtown, Wellington 6021

R O B E R T P A U L C H E R R YWould any lawyer holding a will for the above-named, late of 3251 Paparoa-Oakleigh Road, Paparoa, Northland, who died on 30 March 2013, please contact Dave Dennis, Hammonds Law, Solicitors:[email protected] 09 439 7099 | Fax 09 439 6464PO Box 16, Dargaville | DX AA23502

S T E P H E N J A M E S M I L L I K E NWould any lawyer holding a will for the above-named, late of 561 Back Road, Kongahu, RD3, Karamea, who died on 14 December 2013 near Little Wanganui, please contact Michelle Hawthorn, Symns law:[email protected] 03 546 7088 | Fax 03 545 9007PO Box 534, Nelson 7040

G A V I N A L E X A N D E R H A L LWould any lawyer holding a will for the above-named, late of 39a Burns Road, Napier, Contract Draughtsman, born on 24 April 1957, who died on 22 February 2014, please contact Sean Olsen:[email protected] | Ph 021 549 644 214 Wolseley Street, Mayfair, Hastings 4122

P H I L I P P A J A N E S K Y R M EWould any lawyer holding a will for the above-named, late of 309A Kepa Road, Kohimarama, Auckland, who died on 30 March 2014, aged 44 years, please contact Pearl Butler, Gellert Ivanson:[email protected] 09 575 2330 | Fax 09 575 2337PO Box 25239, St Heliers, Auckland 1041

B A R R Y I R V I N E F R E D E R I C K M A L O N EWould any lawyer holding a will for the above-named, late of Tauranga, who died on 30 September 2013 aged 54 years, please contact Jodi Nicols, Bush

Forbes Solicitors:[email protected] 07 577 6039 | Fax 07 577 6863PO Box 526, Tauranga 3140

R O B E R T S U M E S H W A R D A Y A LWould any lawyer holding a will for the above-named, late of Sunnyvale, Auckland, who died on 11 October 2013, please contact Tony Kermode, Cook Morris

Quinn Lawyers:[email protected] 09 831 0033 | Fax 09 833 1880PO Box 84203, Westgate, Auckland 0657

S T E V E N R I Z O SWould any lawyer holding a will for the above-named, late of 2/4 Kenwyn Terrace, Newtown, Wellington, Analyst, who died on 15 February 2014 aged 63 years, please contact Rasch Leong Lawyers:[email protected] | Ph 04 387 7831 | Fax 04 387 2432PO Box 14304, Kilbirnie, Wellington 6241

G E O F F R E Y D A V I D D A V I E SWould any lawyer holding a will for the above-named, late of 135 Upper Plain Road, Masterton, New Zealand, who died on 7 February 2014 at the above address, please contact Ainslie Hewton, Solicitors:Ph 06 377 5537 | Fax 06 370 8688PO Box 382, Masteron 5840 | DX PA89049

W I L L S

S I T UAT I O N S VAC A N T

TO L E T

36 · LawTalk 840 · 28 April 2014

JLegal - landing you a fantastic new career in London.With offices in London and New Zealand and with the market finally showing signs of recovery, JLegal is your ideal partner to help you secure your dream London job.

www.jlegal.com find jlegal onnew zealand level 1, 124 willis street, wellington t | +64 4 499 5949

Luke Cunningham Clere is a medium sized law � rm based in Wellington’s CBD.

As the Wellington Crown Solicitor’s o� ce we undertake criminal prosecutions, regulatory enforcement and litigation for the Crown. However, we also have an expanding practice acting for a wide range of Crown and other entities in civil litigation, public law, and professional disciplinary work. No other � rm in Wellington can o� er lawyers the hands on advocacy experience we do.

We are looking for a litigator with at least 5 years experience to work closely with one of our partners focusing primarily in commercial, public law and regulatory litigation. In addition to working in these areas, there may be some opportunity to appear on criminal matters.

We are looking for exceptional candidates with strong written and oral communication skills. You will be conscientious, resilient, able to manage your workload e� ectively and have a demonstrated ability to relate well to a wide range of people.

All applications should include a covering letter, curriculum vitae and academic transcript. Please send applications by e-mail to [email protected]. No agencies please.

Applications close on Monday 12 May 2014.

Litigator 5+ years experience, Wellington based

Your legal search and recruitment partner 021 611 416 / www.jlrnz.com

Solicitor – Corporate Advisory• Auckland office • It's our focus – specialists in law • Proud to be us!

We are a firm of specialist lawyers based in Auckland and Christchurch, with a New Zealand-wide focus and an international perspective.

Our lawyers are all at the top of their game. We make sure of that by only hiring the best and brightest we can find, so you'll be joining a firm of outstanding individuals.

Working within a dynamic corporate/commercial team of nine, including five partners, you can be assured there will be considerable variety, and exposure to interesting and challenging work. This role comprises corporate and general commercial work including sale, acquisition and merger transactions, negotiating and drafting commercial contracts, IT, venture capital and legal compliance advice.

We are ideally looking for:- two to four years' PQE- general commercial experience- strong contract drafting and advisory skills- corporate, merger and acquisition experience would be beneficial.

Our Auckland office has doubled in size in the last twelve months and there's no sign of that stopping. If you're keen to be part of our continued growth and to contribute to our increasing profile in the Auckland market, then please email your application to:

Fleur Templeton - Human Resources Manager Email: [email protected]

Initial enquiries are welcome. Please call Fleur on (03) 964-5843.

S I T UAT I O N S VAC A N T

37LawTalk 840 · 28 April 2014 ·

lawtalk 840

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